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CIA or NSA Warrantlessly Accessed the Content of More than 300 US Persons (Probably More than 1,300) Who Aren’t Terror Suspects

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Because Circa did a really sloppy report on the I Con the Record Transparency Report and Rand Paul quoted, there is a great deal of confusion about what back door searches are.

With the help of the NSA, the FBI collects information via traditional FISA orders. They got 1,559 of them last year, of which 1,477 were targeted at someone in the United States, and of which 336 were targeted at American citizens or permanent residents. All that data goes into a cloud server at the FBI and a separate one at NSA.

In addition, NSA collects information targeted at people overseas under Section 702. FBI can also ask NSA to collect on people they’ve come across in their investigations. Altogether, NSA collected on over 106,000 individual targets last year, via both upstream collection and by asking American providers (Google, Facebook, Yahoo, and the like) for any data they’ve got on those 106,000 targets. They’ll get both sides of targets’ conversations, stored documents and photos, calendar information, and other information.

After NSA gets that information, it will share the parts of that are most relevant to the CIA and the FBI’s missions with them, in raw form. At the FBI, that data is stuck on the same cloud server as the domestic-focused FISA data is in. It is understood that FBI receives any terrorism, counterproliferation, or spying data that has a domestic component (such as Russian spies or ISIS recruiters trying to recruit Americans).

All three agencies — NSA, CIA, and FBI — can then search their own collections of FISA information using the identifier of a US person (a citizen or permanent resident). At NSA and CIA, the analyst has to have a foreign intelligence purpose, such as they think Russians are trying to recruit Mike Flynn. At FBI, an agent has to be looking for criminal information, national security information, or even doing an assessment (such as to figure out whether Carter Page would make a good informant on what the Trump campaign is doing). FBI does so many of these searches they can’t count them.

If there are conversations involving these people in the relevant databases, it appears to the analyst or agent in unmasked form. Yes, if CIA and NSA want to write reports to the White House about what they found, then the name might be masked (but in the vast majority of reports based off 702 reports involving US persons — perhaps 74% — the US person identities eventually get unmasked), but the FBI may dump that data into investigative files.

To understand how and who this might impact in the United States, take this comment from Jim Comey the other day. When asked how many active terrorist investigations the FBI has, he said there were 1,000 investigations where the target was known to be talking to terrorist overseas, and 1,000 where the target embraced radicalism all by him or herself, without talking to an ISIS or any other overseas recruiter.

COMEY: Yes I do. If — we have about 1,000 home grown violent extremist investigations and we probably have another 1,000 or so that are — I should define my terms. Home grown violent extremists, we mean somebody — we have no indication that they’re in touch with any terrorists.

TILLIS: Any foreign touch. Right.

COMEY: Yes. Then we have another big group of people that we’re looking at who we see some contact with foreign terrorists. So you take that 2,000 plus cases, about 300 of them are people who came to the United States as refugees.

Let’s take the higher number, and say there are 2,000 people in the US the intelligence community thinks might be terrorists or susceptible to being convinced to become one.

Now let’s look at the back door search numbers. The NSA used the identifiers (say, their cell phone identifier or their email) of US persons and searched the metadata from their stash of 702 data 30,355 times last year. (The CIA and FBI refuse to count how many metadata searches they did.) That means that NSA tried to do a network analysis on over 28,000 Americans and permanent residents who are not the subject of investigations by the FBI for being terrorists.

Between CIA and FBI combined, they did 5,288 queries on US persons last year. Back in 2013, the CIA did far more searches than the NSA (on 1,400 selectors as compared to NSA’s 198); we don’t know how the split works now. But assume that at least one agency is doing at least 2,644 searches. At the NSA, all 336 traditional FISA targets can be (and I assume are) tasked for back door searches; presumably a chunk of the 336 people targeted under are being investigated for terrorism, though that would also include people like (allegedly) Carter Page, people the FBI has gotten the FISA court to believe are agents of foreign powers). But even if we assume none of the people targeted under FISA are terrorists and all domestic terrorists are being back door searched at NSA, that leaves over 300 people (2,644 – 1,000 – 1,000 – 336) who are having their content accessed without a warrant by the NSA (to say nothing of the FBI, which does it so often it can’t count it). The number is probably higher, though, given that 1,000 of those terrorist suspects aren’t conversing with foreigners. The NSA (or CIA) is only going to access content if they know it exists from metadata, and Comey comment suggests there’s no metadata indicating such conversations. And at least some of those 336 targeted US persons are terror suspects.

Which means one agency — NSA or CIA — is likely accessing the raw content of 1,300 people who aren’t terrorist suspects.

That’s fine. There are other things they might be: suspected weapons proliferators, suspected Russian or Chinese spies, people the government is worried are being recruited by spies, suspected hackers, suspected leakers, Americans who’ve been kidnapped.

But the numbers make clear that the presumption that all of this spying is targeted at terrorists is simply wrong. There are at least 300 people — and probably more like 1,300 people — who even the NSA is accessing the content of without a warrant who are not terrorist suspects.

And the number at FBI is so high it can’t count it.

Raw Versus Cooked: Could NSC Monitor FBI’s Investigation?

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Multiple people,including Bart Gellman and Josh Marshall, are now arguing that the reason Ezra Cohen-Watnick and Michael Ellis found intercepts involving Trump’s people is that they were monitoring FBI’s investigation of the investigation.

I certainly think the Trump people would like to do that — and would be willing to stoop to that. I even believe that the response to the Russian hack last year had some counterintelligence problems, though probably not on the FBI side.

But there are some details that may limit how much the NSC can monitor the investigation.

First, Devin Nunes has always been very clear: the intercepts he was shown have nothing to do with Russia. That’s not, itself, determinative. After all, Cohen-Watnick and Ellis might have found a bunch of Russian intercepts, but only shared the non-Russian ones so Nunes could make a stink without being accused of endangering the investigation. Also, it’s possible that intercepts involving other countries — most notably Turkey, but there are other countries that might be even more interesting, including Ukraine or Syria — would impact any Russian investigation.

Also note that among the many things Nunes appears not to understand about surveillance is that there are two ways an American’s name can be visible outside the circle of analysts doing the initial review of them: their names can be put into finished intelligence reports that get circulated more broadly, with customers asking to have the name unmasked after the fact. Alternately, their names can be found off of subsequent searches of raw data. At the NSA and CIA, searches for US person content are somewhat controlled. At FBI they are not only not controlled, but they are routine even for criminal investigations. So if, say, General Flynn (or Paul Manafort) were under investigation for failing to register as a foreign agent, the FBI would routinely search their database of raw FISA material on his name. (These are the “back door searches” Ron Wyden has been screaming about for years, concerns which people like Devin Nunes have previously dismissed on national security grounds.) And we have every reason to believe that counterintelligence intercepts of Russians in the US are among the raw feeds that the FBI gets. So if Flynn had conversations with Russians (or Turks) in the US, we should assume that FBI saw them as a routine matter if Flynn became the subject of an investigation at all. We should also assume that the FBI did a search on every Sergey Kislyak intercept in their possession, so they will have read everything that got picked up, including all recorded calls with Trump aides.

On March 15, the House Intelligence Committee asked the NSA, CIA, and FBI for information on unmasking. I don’t believe that request asked about access to US person names on subsequent searches or raw material. Furthermore, at least as of last week, the FBI was not rushing to comply with that request. As I noted after the Jim Comey hearing before HPSCI, none of the Republicans concerned about these issues seemed to have any basic clue about FBI’s searches on raw data. If Nunes doesn’t know (and he appears not to), it’s unlikely Ellis knows, who was until this month Nunes’ aide.

But there’s one other thing that may prevent NSC from obtaining information about the investigation: FBI sometimes uses what are called “ad hoc databases” that include raw FISA data (and probably, post EO 12333 sharing rule changes, raw EO 12333 data) tied to particular investigations. It’s unclear what conditions might necessitate the use of an ad hoc database (see page 25ff for a discussion of them), but if security concerns would encourage their use, it would be likely to have one here, an investigation which Comey described as being so sensitive he delayed briefing the Gang of Four. Ad hoc databases are restricted to those working on investigations, and include specific records of those authorized to access the database. So if FBI were using an ad hoc database for this investigation, it would be even harder for the NSC to learn what they were looking at.

If the FBI’s investigation relies on raw intelligence — and it would be unfathomable that it does not, because it would probably receive the raw FISA data tied to such an investigation routinely, and EO 12333 sharing rules specifically envision the sharing of raw data associated with counterintelligence investigations — then the NSC’s access to finished intelligence reports would provide little insight into the investigation (Nunes was a bit unclear on whether that’s what he was looking at, but the entire premise of his complaints is that these were finished reports).

But while we’re worrying about whether and how Trump would monitor an investigation into his aides, remember that in 2002, Jay Bybee wrote a memo authorizing the sharing of grand jury information with the President and his close advisors including for counterintelligence investigations.

In addition, the Patriot Act recently amended 6(e) and Title III specifically to provide that matters involving foreign intelligence or counterintelligence or foreign intelligence information may be disclosed by any attorney for the government (and in the case of Title III, also by an investigative or law enforcement officer) to certain federal officials in order to assist those officials in carrying out their duties. Federal officials who are included within these provisions may include, for example, the President, attorneys within the White House Counsel’s Office, the President’s Chief of Staff, the National Security Advisor, and officials within the Central Intelligence Agency and the Department of Defense.

[snip]

Although the new provision in Rule 6(e) permitting disclosure also requires that any disclosures be reported to the district court responsible for supervising the grand jury, we conclude that disclosures made to the President fall outside the scope of the reporting requirement contained in that amendment, as do related subsequent disclosures made to other officials on the President’s behalf.

In other words, Trump could demand that he — or his National Security Advisor! — get information on any grand jury investigations, including those covering counterintelligence cases. And no judge would be given notice of that.

With Jeff Sessions’ recusal, that’s far less likely to happen than it might have been. But understand that the Executive Branch believes that the President can learn about the happenings in grand jury investigations of the sort that might target his aides.

Update: additional details have been added to this post after it was first posted.

Did Trump Just Confirm He Hid Sally Yates’ Warning from Mike Pence?

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The WaPo has another big story, this one reporting that the Trump Administration attempted to prevent Sally Yates from testifying about her warnings to the Trump Administration that Mike Flynn had had conversations about sanctions with Russian Ambassador Sergey Kislyak.

Scott Schools, another Justice Department official, replied in a letter the following day, saying the conversations with the White House “are likely covered by the presidential communications privilege and possibly the deliberative process privilege. The president owns those privileges. Therefore, to the extent Ms. Yates needs consent to disclose the details of those communications to [the intelligence panel], she needs to consult with the White House. She need not obtain separate consent from the department.’’

Yates’s attorney then sent a letter Friday to McGahn, the White House lawyer, saying that any claim of privilege “has been waived as a result of the multiple public comments of current senior White House officials describing the January 2017 communications. Nevertheless, I am advising the White House of Ms. Yates’ intention to provide information.’’

That same day, Nunes, the panel’s chairman, said he would not go forward with the public hearing that was to feature Yates’s testimony.

In response to the story, Adam Schiff suggested Yates might have testified about why Trump waited before firing Flynn.

[W]e would urge that the open hearing be rescheduled without further delay and that Ms. Yates be permitted to testify freely and openly so that the public may understand, among other matters, when the President was informed that his national security advisor had misled the Vice President and through him, the country, and why the President waited as long as he did to fire Mr. Flynn.

According to the WaPo, Yates informed Don McGahn that Flynn was lying about his calls, making him susceptible to blackmail, on January 26. She was fired on January 31. Flynn tried to lie about the conversation again on February 8. Then, as the WaPo was reporting this story, he altered his story. Nevertheless, it wasn’t until the WaPo reported on Yates’ warning, on February 13, that Trump forced Flynn to resign.

Two days after Yates’ warning, January 28, Trump spent an hour on the phone with Vladimir Putin, with Flynn (and Pence) in attendance.

So one of the things that Trump enabled by stalling on his response to Sally Yates was that phone call.

In any case, the claim that Yates’ conversations with McGahn should be covered by Executive Privilege is a stretch. Just by way of precedent, in 2007, Jim Comey testified about his conversations with White House Counsel Alberto Gonzales while serving as Acting Attorney General.

That is, Yates’ conversation should not be covered by Executive Privilege unless Trump is claiming he was involved in hiding this information from Mike Pence.

The Jared Kushner Meeting Gets Closer to Quid Pro Quo

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Last week, several members of Congress anonymously told the press they had, for the first time, seen evidence that might support charges of collusion between Trump’s associates and the Russians. The frenzied speculation mostly focused on the usual suspects: Paul Manafort, Mike Flynn, Roger Stone, or Carter Page (somehow, the frenzied speculation often forgets Trump lawyer Michael Cohen).

Today, the NYT has a story reporting that the Senate Intelligence Committee wants to talk to Jared Kushner about a previously undisclosed meeting arranged by Russian Ambassador to the US, Sergey Kislyak.

Until now, the White House had acknowledged only an early December meeting between Mr. Kislyak and Mr. Kushner, which occurred at Trump Tower and was also attended by Michael T. Flynn, who would briefly serve as the national security adviser.

Later that month, though, Mr. Kislyak requested a second meeting, which Mr. Kushner asked a deputy to attend in his stead, officials said. At Mr. Kislyak’s request, Mr. Kushner later met with Sergey N. Gorkov, the chief of Vnesheconombank, which drew sanctions from the Obama administration after President Vladimir V. Putin of Russia annexed Crimea and began meddling in Ukraine.

The NYT only notes this obliquely by stating the committee has access to routine intercepts involving the Ambassador, but remember that FBI went through Kislyak’s intercepted communications in hopes of explaining why Vladimir Putin didn’t respond more aggressively to sanctions Obama imposed in December. So SSCI likely discovered this undisclosed meeting that way.

Which is interesting, because Kushner did not reveal it to some senior Trump officials (likely including White House Counsel Don McGahn).

The extent of Mr. Kushner’s interactions with Mr. Kislyak caught some senior members of Mr. Trump’s White House team off guard, in part because he did not mention them last month during a debate then consuming the White House: how to handle the disclosures about Mr. Flynn’s interactions with the Russian ambassador.

Ms. Hicks said that Mr. Trump had authorized Mr. Kushner to have meetings with foreign officials that he felt made sense, and to report back to him if those meetings produced anything of note. She said that because in Mr. Kushner’s view the meetings were inconsequential, it did not occur to him to mention them to senior staff members earlier.

NYT raises the possibility that Kushner discussed his efforts to fund one of his family’s business in NYC, though Hope Hicks claimed it — and the sanctions — did not come up.

But consider how this meeting might interact with another known Kislyak conversation, the multiple calls with Flynn on December 29 after Obama imposed hacking related sanctions. In context, that conversation was about the hacking sanctions, not the more onerous Ukraine ones. But if Kushner had just met with a sanctioned bank and discussed those sanctions, that could change Kislyak’s understanding of what Flynn was saying.

One mistake of a lot of the frenzied speculation is a focus on changing US policy towards Ukraine, a focus not borne out by the public evidence. The result of that focus is to ignore what the Christopher Steele dossier makes clear was the real Russian goal, unsurprisingly: the lifting of the Ukraine-related sanctions.

There still is no evidence that’s what happened at this meeting that Kushner succeeded in hiding from people within the White House. But if it did, then it might amount to far more than all the smoke swirling around Manafort, Page, and Stone.

National Enquirer’s Serial Spy Novel: Featuring Hillary, Flynn, Assange, Pence, and Ryan

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The claim that “Trump catches Russia’s White House spy” — clearly an attempt to smear Mike Flynn — actually got me to drop the $4.99 for a copy of the National Enquirer to read the hit job. And it’s actually more than a contrived effort to claim Flynn is a Russian spy: it’s a four-page spread, implicating Hillary and Mike Pence, too.

The story about Flynn is, instead, mostly a story about Jack Barsky, the former Russian spy who has gotten a lot of press of late tied to the release of his book. Just Thursday, CNN published an interview with him claiming, “What is clear is that email accounts of Democrat operatives were hacked and those hacks originated in Russia. Anything beyond that is pure speculation.” But amid a two-page story of Barsky’s life (as if the details of his life — and Barsky himself — were newly discovered), NE includes two quotes. A “national security intelligence source” warns of other Russian spies:

Jack Barsky is a Russian spy that was caught. But what is really frightening is that there are others out there like him embedded deep into Washington D.C. … Barsky being tracked down will greatly help the president smoke out other rats in his ranks.

And amid a four paragraph discussion of Mike Flynn, NE quotes an “administration source.”

The revelations [about Barsky] come as still-unfolding details continue to worm their way into the public eye about Trump’s own White House “turncoat” — now-ousted national security adviser and retired Lt. Gen. Michael T. Flynn.

Flynn was booted from Trump’s cabinet after intercepted phone calls exposed how he had colluded with Russian officials — and then had the chutzpah to lie about it when questioned by Vice President Mike Pence.

“He was, in essence, the Russian spy in Trump’s midst,” said an administration source who spoke to The ENQUIRER on the condition of anonymity. “Trump was lucky to root him out when he did.”

The unfolding Russian spy drama will overshadow the House of Representatives Intelligence Committee hearing investigating alleged ties between Trump’s campaign and Putin, source said.

Of course, Trump transition official Devin Nunes has already canceled the next hearing into ties between Trump’s campaign and Putin, but perhaps Trump plans on magnifying this hit job in upcoming days, replete with spooky language — “embedded,” “smoke out other rats,” “worm their way,” “turncoat,” “root him out,” — to shift the focus on disloyalty within the Trump Administration.

Which brings us to the other main story in this four-page spread.

It describes how “Trump crushe[d] Clinton coup” designed to install Mike Pence, purportedly revealed by Julian Assange in these two tweets (and some follow-up):

It treats Assange’s claims about his arch enemy as credible because, as a “Beltway insider sniffed … Assange is plugged in and has deep connections to Russian intelligence, along with similar networks around the world.”

The story cites a “White House insider” describing Trump giving Pence a loyalty oath.

President Trump called Pence into the Oval Office and forced him to take a lie detecter test to prove his loyalty. Pence swore he had nothing to do with Hillary and was being moved around like a chess piece in evil Hillary’s game!

After alleging Baywatch’s Pamela Anderson might be a cut-out and/or love interest for Assange, the story then turns on Paul Ryan, citing a quote first published in October, the audio of which was released by Breitbart the same day as the Assange tweets, March 14. The NE claimed that Hillary leaked the call to sow dissent before the health care vote.

The timing of the leak is not a coincidence. The call took place in October and leaked now — just as Ryan and Trump are working to muster support for the health care bill to replace Obamacare. Hillary’s people leaked it to drive a wedge between Trump and Ryan, undermine their efforts to reform health care and destroy the president!

In short, the second article is even more fevered than the one implicating Flynn.

Finally, in addition to a short piece attacking Chris Matthews, the spread includes a non-denial denial of Christopher Steele’s dossier, claiming it showed “Trump orgies” and “graphic sex involving hookers,” which is not precisely what pee gate claimed. It then dismisses the claims because “Trump neither drinks nor uses drugs,” as if that would rule out orgies.

Undoubtedly, all this was placed with the cooperation of the White House, if not direct quotes from Trump (which is something he has a history of doing). While the Flynn story has been viewed — particularly alongside unsubstantiated claims that Flynn is cooperating with the FBI — as an attempt to damage him for snitching, it almost certainly dates to earlier than more recent attacks on Flynn, and in conjunction with stories of loyalty oaths from Pence appears tame by comparison.

Trump wants to justify a witch hunt among the National Enquirer set. And at least thus far, Flynn and warnings of replacement by Pence are no more than the excuse for launching it.

When a White Republican Gets Spied On, Privacy Suddenly Matters

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As expected, much of today’s hearing on the Russian hack consisted of members of Congress — from both parties — posturing for the camera.

At first, it seemed that the Republican line of posturing — complaining about the leak that exposed Mike Flynn’s conversations with Ambassador Sergey Kislyak — tracked Donald Trump’s preferred approach, to turn this into a witch hunt for the leakers.

But it was actually more subtle than that. It appears Republicans believe the leaks about Flynn have (finally) made Congress skittish about incidental collection of US person communications as part of FISA collection. And so both Tom Rooney and Trey Gowdy spent much of their early hearing slots discussing how much more difficult the leak of Flynn’s name will make Section 702 reauthorization later this year. In the process, they should have created new fears about how painfully ignorant the people supposedly overseeing FISA are.

Rooney, who heads the subcommittee with oversight over NSA, started by quizzing Mike Rogers about the process by which a masked US person identity can be disclosed. Along the way, it became clear Rooney was talking about Section 702 reauthorization even while he was talking traditional FISA collection, which doesn’t lapse this year.

Rooney: If what we’re talking about is a serious crime, as has been alleged, in your opinion would leaking of a US person who has been unmasked and disseminated by intelligence community officials, would that leaking hurt or help our ability to conduct national security.

Rogers: Hurt.

Rooney: Ok, if it hurts, this leak, which through the 702 tool, which we all agree is vital–or you and I at least agree to that–do you think that that leak actually threatens our national security. If it’s a crime, and if it unmasks a US person, and this tool is so important it could potentially jeopardize this tool when we have to try to reauthorize it in a few months, if this is used against our ability to reauthorize this tool, and we can’t get it done because whoever did this leak, or these nine people that did this leak, create such a stir, whether it be in our legislative process or whatever, that they don’t feel confident a US person, under the 702 program, can be masked, successfully, and not leaked to the press, doesn’t that hurt–that leak–hurt our national security.

Eventually Admiral Rogers broke in to explain to his congressional overseer very basic facts about surveillance, including that Flynn was not and could not have been surveilled under Section 702.

Rogers: FISA collection on targets in the United States has nothing to do with 702, I just want to make sure we’re not confusing the two things here. 702 is collection overseas against non US persons.

Rooney: Right. And what we’re talking about here is incidentally, if a US person is talking to a foreign person that we’re listening to whether or not that person is unmasked.

Nevertheless, Rooney made it very clear he’s very concerned about how much harder the Flynn leak will make it for people like him to convince colleagues to reauthorize Section 702, which is even more of a privacy concern than traditional FISA.

Rooney: But it’s really going to hurt the people on this committee and you in the intelligence community when we try to retain this tool this year and try to convince some of our colleagues that this is really important for national security when somebody in the intelligence community says, you know what the hell with it, I’m gonna release this person’s name, because I’m gonna get something out of it. We’re all gonna be hurt by that. If we can’t reauthorize this tool. Do you agree with that?

A little later, Trey Gowdy got his second chance to complain about the leak. Referencing Rogers’ earlier explanation that only 20 people at NSA can unmask a US person identity, Gowdy tried to figure out how many at FBI could, arguing (this is stunning idiocy here) that by finding a finite number of FBI officials who could unmask US person identities might help assuage concerns about potential leaks of US persons caught in FISA surveillance.

Comey: I don’t know for sure as I sit here. Surely more, given the nature of the FBI’s work. We come into contact with US persons a whole lot more than the NSA does because we may be conducting — we only conduct our operations in the United States to collect electronic surveillance. I can find out the exact number. I don’t know it as I sit here.

Gowdy: I think Director Comey given the fact that you and I agree that this is critical, vital, indispensable. A similar program is coming up for reauthorization this fall with a pretty strong head wind right now, it would be nice to know the universe of people who have the power to unmask a US citizen’s name. Cause that might provide something of a road map to investigate who might have actually disseminated a masked US citizen’s name.

Here’s why this line of questioning from Gowdy is unbelievably idiotic. Both for traditional FISA, like the intercept targeting Kislyak that caught Flynn, and for Section 702, masking and unmasking identities at FBI is not the concern. That’s because the content from both authorities rests in FBI’s databases, and anyone cleared for FISA can access the raw data. And those FBI Agents not cleared for FISA can and are encouraged just to ask a buddy who is cleared to do it.

In other words, every Agent at FBI has relatively easy way to access the content on Flynn, so long as she can invent a foreign intelligence or criminal purpose reason to do so.

Which is probably why Comey tried to pitch something he called “culture” as adequate protection, rather than the very large number of FBI Agents who are cleared into FISA.

Comey: The number is … relevant. What I hope the US–the American people will realize is the number’s important but the culture behind it is in fact more important. The training, the rigor, the discipline. We are obsessive about FISA in the FBI for reasons I hope make sense to this committee. But we are, everything that’s FISA has to be labeled in such a way to warn people this is FISA, we treat this in a special way. So we can get you the number but I want to assure you the culture in the FBI and the NSA around how we treat US person information is obsessive, and I mean that in a good way.

So then Gowdy asks Comey something he really has a responsibility to know: what other agencies have Standard Minimization Procedures. (The answer, at least as the public record stands, is NSA, CIA, FBI, and NCTC have standard minimization procedures, with Main Justice using FBI’s SMPs.)

Gowdy: Director Comey I am not arguing with you and I agree the culture is important, but if there are 100 people who have the ability to unmask and the knowledge of a previously masked name, then that’s 100 different potential sources of investigation. And the smaller the number is, the easier your investigation is. So the number is relevant. I can see the culture is relevant. NSA, FBI, what other US government agencies have the authority to unmask a US citizen’s name?

Comey: Well I think all agencies that collect information pursuant to FISA have what are called standard minimization procedures which are approved by the FISA court that govern how they will treat US person information. So I know the NSA does, I know the CIA does, obviously the FBI does, I don’t know for sure beyond that.

Gowdy: How about Main Justice?

Comey: Main Justice I think does have standard minimization procedures.

Gowdy: Alright, so that’s four. NSA, FBI, CIA, Main Justice. Does the White House has the authority to unmask a US citizen’s name?

Comey: I think other elements of the government that are consumers of our can ask the collectors to unmask. The unmasking resides with those who collected the information. And so if Mike Rogers’ folks collected something, and they send it to me in a report and it says it’s US person #1 and it’s important for the FBI to know who that is, our request will go back to them. The White House can make similar requests of the FBI or NSA but they don’t on their own collect, so they can’t on their own unmask.

That series of answers didn’t satisfy Gowdy, because from his perspective, if Comey isn’t able to investigate and find a head for the leak of Flynn’s conversation with Kislyak — well, I don’t know what he thinks but he’s sure an investigation, possibly even the prosecution of journalists, is the answer.

Gowdy: I guess what I’m getting at Director Comey, you say it’s vital, you say it’s critical, you say that it’s indispensable, we both know it’s a threat to the reauthorization of 702 later on this fall and oh by the way it’s also a felony punishable by up to 10 years. So how would you begin your investigation, assuming for the sake of argument that a US citizen’s name appeared in the Washington Post and the NY Times unlawfully. Where would you begin that investigation?

This whole series of questions frankly mystifies me. I mean, these two men who ostensibly provide oversight of FISA clearly didn’t understand what the biggest risk to privacy is –back door searches of US person content — which at the FBI doesn’t even require any evidence of wrong-doing. That is the biggest impediment to reauthorizing FISA.

And testimony about the intricacies of unmasking a US person identity — particularly when a discussion of traditional FISA serves as stand-in for Section 702 — does nothing more than expose that the men who supposedly oversee FISA closely have no fucking clue — and I mean really, not a single fucking clue — how it works. Devin Nunes, too, has already expressed confusion on how access to incidentally collected US person content works.

Does anyone in the House Intelligence Committee understand how FISA works? Bueller?

In retrospect, I’m really puzzled by what is so damning about the Flynn leak to them. I mean, don’t get me wrong, I’m very sympathetic to the complaint that the contents of the intercepts did get leaked. If you’re not, you should be. Imagine how you’d feel if a Muslim kid got branded as a terrorist because he had a non-criminal discussion with someone like Anwar al-Awlaki? (Of course, in actual fact what happened is the Muslim kids who had non-criminal discussions with Awlaki had FBI informants thrown at them until they pressed a button and got busted for terrorism, but whatever.)

But Rooney and Gowdy and maybe even Nunes seemed worried that their colleagues in the House have seen someone like them — not a young Muslim, but instead a conservative white man — caught up in FISA, which has suddenly made them realize that they too have conversations all the time that likely get caught up in FISA?

Or are they worried that the public discussion of FISA will expose them for what they are, utterly negligent overseers, who don’t understand how invasive of privacy FISA currently is?

If it’s the latter, their efforts to assuage concerns should only serve to heighten those concerns. These men know so little about FISA they don’t even understand what questions to ask.

In any case, after today’s hearing I am beginning to suspect the IC doesn’t like to have public hearings not because someone like me will learn something, but because we’ll see how painfully little most of the so-called overseers have learned in all the private briefings the IC has given them. If these men don’t understand the full implications of incidental collection, two months after details of Flynn’s conversations have been leaked, then it seems likely they’ve been intentionally mis or underinformed.

Or perhaps they’re just not so bright.

FBI Delayed Telling the Gang of Four about Trump-Related Investigation Because It Is So Serious

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As every newspaper in town has reported, at today’s hearing into Russia’s hack of the DNC, Jim Comey confirmed that the FBI has a counterintelligence investigation into the hack that includes whether Trump’s associates coordinated with Russian actors. Along the way, Comey refused to join in James Clapper’s statement that there was no evidence of collusion between Trump’s aides and Russia. When the now retired Director of National Intelligence said that, Clapper had emphasized that his statement only extended through the end of his service, January 20; he warned that some evidence may have been discovered after that.

A far more telling detail came close to the end of the hearing, during NY Congresswoman Elise Stefanik’s questioning. She started by asking what typical protocols were for informing the DNI, the White House, and senior Congressional leadership about counterintelligence investigations.

Stefanik: My first set of questions are directed at Director Comey. Broadly, when the FBI has any open counterintelligence investigation, what are the typical protocols or procedures for notifying the DNI, the White House, and senior congressional leadership?

Comey: There is a practice of a quarterly briefing on sensitive cases to the Chair and Ranking of the House and Senate Intelligence Committees. The reason I hesitate is, thanks to feedback we’ve gotten, we’re trying to make it better. And that involves a briefing briefing the Department of Justice, I believe the DNI, and the — some portion of the National Security Council at the White House. We brief them before Congress is briefed.

Stefanik: So it’s quarterly for all three, then, senior congressional leadership, the White House, and the DNI?

Comey: I think that’s right. Now that’s by practice, not by rule or by written policy. Which is why, thanks to the Chair and Ranking giving us feedback, we’re trying to tweak it in certain ways.

Note that point: the practice has been that FBI won’t brief the Gang of Four until after they’ve briefed DOJ, the DNI, and the White House. Stefanik goes on to ask why, if FBI normally briefs CI investigations quarterly, why FBI didn’t brief the Gang of Four before the last month, at least seven months after the investigation started. Comey explains they delayed because of the sensitivity of the investigation.

Stefanik: So since in your opening statement you confirmed that there is a counterintelligence investigation currently open and you also referenced that it started in July, when did  you notify the DNI, the White House, or senior Congressional leadership?

Comey: Congressional leadership, sometime recently — they were briefed on the nature of the investigation and some details, as I said. Obviously the Department of Justice must have been aware of it all along. The DNI … I don’t know what the DNI’s knowledge of it was, because we didn’t have a DNI until Mr. Coats took office and I briefed him his first morning in office.

Stefanik: So just to drill down on this, if the open investigation began in July, and the briefing of Congressional leadership only occurred recently, why was there no notification prior to the recent — the past month.

Comey: I think our decision was it was a matter of such sensitivity that we wouldn’t include it in the quarterly briefings.

Stefanik: So when you state “our decision,” is that your decision, is it usually your decision what gets briefed in those quarterly updates?

Comey: No. It’s usually the decision of the head of our counterintelligence division.

Stefanik: And just again, to get the details on the record, why was the decision not to brief senior congressional leadership until recently, when the investigation had been open since July, a very serious investigation. Why was that decision made to wait months?

Comey: Because of the sensitivity of the matter.

Stefanik then got Comey to reconfirm what the IC report says: that Russia had hacked numerous entities, he would later say over a thousand, including Republican targets.

Stefanik then turned to the Yahoo investigation. She asked whether the FSB officers involved conducted the hack for intelligence purposes — a question Comey refused to answer. He also refused to answer what the FSB did with the information stolen.

Stefanik: Taking a further step back of what’s been in the news recently and I’m referring to the Yahoo hack, the Yahoo data breach, last week the Department of Justice announced it was charging hackers with ties to the FSB in the 2014 data breach. Was this hack done, to your knowledge, for intelligence purposes?

Comey: I can’t say in this forum.

Stefanik: Press reporting indicates the Yahoo hack targeted journalists, dissidents and government officials. Do you know what the FSB did with the information they obtained?

Comey: Same answer.

Stefanik: Okay, I understand that.

This is important for a number of reasons, including the evidence that the FSB was hiding their hacking from others in Russia.

Stefanik then turned to the sanctions, asking if Comey had any insight into how the Obama Administration chose who got sanctioned in December — which included Alexsey Belan but not the FSB officers involved (one of whom, Dmitry Dokuchaev, was already under arrest for treason by the time of the sanctions).

Stefanik: How did the Administration determine who to sanction as part of the election hacking? How familiar are [] with that decision process and how is that determination made?

Comey: I don’t know. I’m not familiar with the decision-making process. The FBI is a factual input but I don’t recall — I don’t have any personal knowledge about how the decisions were made about who to sanction.

Again, her interest in this is significant — I’ll explain why in a follow-up.

Stefanik then asked what the intelligence agencies would do going forward to keep entities safe from Russian hacking. As part of the response, Mike Rogers revealed (unsurprisingly) that NSA first learned of FSB’s hacking of those many targets in the summer of 2015.

Finally, Stefanik returned to her original point, when Congress gets briefed on CI investigations. Comey’s response was remarkable.

Stefanik: It seems to me, in my first line of questioning, the more serious a counterintelligence investigation is, that would seem to trigger the need to update not just the White House, the DNI, but also senior congressional leadership. And you stated it was due to the severity. I think moving forward, it seems the most severe and serious investigations should be notified to senior congressional leadership. And with that thanks for your lenience, Mr. Chairman, I yield back.

Comey could have been done with Stefanik yielding back. But instead, he interrupted, and suggested part of the delay had to do with the practice of briefing within the Executive Branch NSC before briefing Congress.

Comey: That’s good feedback, Ms. Stefanik, the challenge for is, sometimes we want to keep it tight within the executive branch, and if we’re going to go brief congressional leaders, the practice has been then we brief inside the executive branch, and so we have to try to figure out how to navigate that in a good way.

Which seems to suggest one reason why the FBI delayed briefing the Gang of Four (presumably, this is the Gang of Eight) is because they couldn’t brief all Executive Branch people the White House, and so couldn’t brief Congress without first having briefed the White House.

Which would suggest Mike Flynn may be a very central figure in this investigation.

Update: I’ve corrected my last observation to match Comey’s testimony that the delay had to do with keeping things on a close hold within the Executive Branch. That may be nothing, it may reflect the delay on confirming Dan Coats, it may be Flynn (if you normally brief the NSC, after all the National Security Advisor would be among the first to be briefed), but it also could be Jeff Sessions.

Five Data Points on the Sessions News

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As you no doubt have heard, Jeff Sessions met twice with Russian Ambassador Sergey Kislyak last year, then told the Senate Judiciary Committee he had either not talked about the election with any Russians (a written response to Patrick Leahy’s question) or not talked with Russians as a surrogate of the campaign (an oral response to Al Franken).WSJ describes the probe as reviewing stuff in spring of last year, so before the July contact with Kislyak. Thus far, Sessions, his spox, and anonymous Trump official have offered three conflicting explanations for Sessions’ non-disclosure, including Sessions’ own, “I have no idea what this allegation is about. It is false.”

Already, Democrats are demanding Sessions’ resignation and more Democrats and some Republicans are calling for him to recuse himself for the FBI counterintelligence investigation. The Twittersphere is calling for prosecution for perjury.

Update: WSJ had originally said Sessions and Kislyak spoke by phone, then corrected to in-person. According to this, he had one of each, with a phone followup several days after the in-person. Which means there’d be a transcript.

Jeff Sessions will almost certainly not be prosecuted for perjury

Which brings me to my first data point. Jeff Sessions is not going to be prosecuted for perjury. And that’s true for more reasons than that he is the AG.

First, it’s a hard crime to prove, because you have to prove that someone knowingly lied. Right now Sessions is all over the map, but he’s also dumb enough to be able to feign stupidity.

Plus, lying to Congress just doesn’t get prosecuted anymore. Remember, Alberto Gonzales lied in his own confirmation hearing in 2005, claiming there were no disagreements about Stellar Wind. It was always clear that was a lie, but even after Jim Comey confirmed that was the case with his May 2007 SJC hospital heroes performance, AGAG stuck around for another three months. And while his lie has often been cited as the reason for his departure in August 2007, I believe that the proximate reason is that he refused to do something Bush wanted him to do, at which point the White House threw him under the bus.

Plus, there are already at least three Trump officials who lied in their confirmation hearings — Mnuchin on his role in robosigning, DeVos on her role in the Prince family foundation, and Pruitt on his use of private emails. None of them are going anywhere.

Finally, in 2013, Holder’s DOJ went way out of its way to protect former DOJ official Scott Bloch from doing time after he lied to the House Oversight Committee. That precedent will make it all the harder to hold anyone accountable for lying to Congress in the future.

The timing of this roll-out gets more and more interesting

Now consider the timing of how all this rolled out.

In another blockbuster (revealing that the Obama Administration squirreled away information on Trump’s advisors to protect informants IDs from him, but also to ensure incriminating information would be available for others), NYT reveals that, after Putin’s non-response to Obama’s December 28 sanctions raised concerns, the FBI found Mike Flynn’s contacts with Kislyak on January 2.

On Jan. 2, administration officials learned that Mr. Kislyak — after leaving the State Department meeting — called Mr. Flynn, and that the two talked multiple times in the 36 hours that followed. American intelligence agencies routinely wiretap the phones of Russian diplomats, and transcripts of the calls showed that Mr. Flynn urged the Russians not to respond, saying relations would improve once Mr. Trump was in office, according to multiple current and former officials.

On January 10, the Trump dossier began to leak. Al Franken actually used that as the premise to ask Sessions about contacts with the Russians.

On January 12, David Ignatius published the first word of the Flynn-Kislyak calls, alerting anyone dumb enough not to already know that the FBI was going through Kislyak’s ties with Trump officials.

This had the effect of teeing up Flynn as a target, without giving Sessions (and other Trump officials) that their contacts with Kislyak were being scrutinized. And only after Flynn’s departure has this Sessions stuff come out.

I imagine someone in the White House Counsel’s office is now reviewing all the metadata and transcripts tied to Kislyak to see who else had curious conversations with him.

The claim Kislyak is the top spy recruiter

CNN’s version of this story and a separate profile of Kislyak insinuates that Session’s contact with Kislyak by itself is damning, because he “is considered by US intelligence to be one of Russia’s top spies and spy-recruiters in Washington.”

Current and former US intelligence officials have described Kislyak as a top spy and recruiter of spies, a notion that Russian officials have dismissed. Kremlin spokesman Dmitri Peskov said that “nobody has heard a single statement from US intelligence agencies’ representatives regarding our ambassador,” and attacked the “depersonalized assumptions of the media that are constantly trying to blow this situation out of proportion.”

Even aside from the fact that two Democrats — Joe Manchin of his own accord, and Claire McCaskill after she claimed never to have spoken with Kislyak — have also had contact with him, this seems like a red herring. No matter what Kislyak’s intention, it is still acceptable for someone to meet with a person presenting as a diplomat (for example, no one used to care that Saudi Arabia’s Bandar bin Sultan was running ops when he was Ambassador to the US).

Moreover, if current and former US intelligence officials are so sure Kislyak is the master spook in the US, why wasn’t he at the top of the Persona Non Grata list of 35 diplomats who got ejected at the end of December (though, as I’ve noted in the past, the Russian press was talking about him being replaced).

The delayed preservation request

Yesterday, AP reported that Don McGahn instructed White House officials on Tuesday to retain information relating to Russian contacts.

One official said McGahn’s memo instructs White House staff to preserve material from Trump’s time in office, and for those who worked on the campaign, relevant material from the election.

But the timing of this actually raises more questions. Preservation requests first went out February 17. Reince Priebus admitted knowing about it on the Sunday shows February 19. Sometime during the week of February 20-24, Sean Spicer with Don McGahn conducted a device check with White House staffers to see whether staffers were using Signal or Confide, the latter of which automatically deletes texts, the former of which can be set to do so (after Spicer warned everyone not to leak about the device check, it leaked).

And yet, McGahn only gave preservation instructions on February 28?

Now it’s possible the White House didn’t receive one of the letters sent on February 17 (which would raise other questions), which seems to be the implication of the AP report. But if it did, then McGahn sat on that preservation request for over 10 days, even while being involved in activities reflecting an awareness that staffers were using apps that thwarted retention rules.

Some things can’t be prosecuted

Contrary to what you may believe, thus far none of these reports have confirmed a smoking gun, and the NYT pointedly makes it clear that its sources are not claiming to have a smoking gun (which may not rule out that they have one they’re not yet sharing).

The nature of the contacts remains unknown. Several of Mr. Trump’s associates have done business in Russia, and it is unclear if any of the contacts were related to business dealings.

But consider that smoking guns may be different depending on what they are. That’s true because somethings may be perfectly legal — such as investments from shady Russians — that nevertheless pose a serious counterintelligence risk of compromise going forward.

Its all the more true when you factor in the role of Sessions and Trump. For some of this stuff (including the September meeting with Kislyak) Sessions will be protected by Speech and Debate. It’d be very hard for DOJ to prosecute Sessions for stuff he did as a Senator, even assuming you had someone else in charge of the investigation or department.

Likewise, other crimes may not rise to the level of criminal prosecution but would rise to the level of impeachment. Which is why this passage from the NYT is so interesting.

Obama White House officials grew convinced that the intelligence was damning and that they needed to ensure that as many people as possible inside government could see it, even if people without security clearances could not. Some officials began asking specific questions at intelligence briefings, knowing the answers would be archived and could be easily unearthed by investigators — including the Senate Intelligence Committee, which in early January announced an inquiry into Russian efforts to influence the election.

If FBI judged it could not prosecute Trump or his close associates for something but nevertheless believed the evidence constituted something disqualifying, what they’d want to do is preserve the evidence, make sure SSCI could find it, and provide tips — laid out in the NYT, if need be — about where to look.

And any things that did rise to the level of criminal charges would be a lot easier to charge if someone besides Sessions were in charge.

This seems to be very methodical.

Update: February for January preservation date requests corrected. h/t TN.

Devin Nunes Doesn’t Think Donald Trump Should be Subject To the Kind of “Witch Hunt” He Conducted with Edward Snowden

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We know what a Devin Nunes-led investigation into possible Russian compromise looks like. Just in December, after all, the House Intelligence Committee released their investigation into Edward Snowden.

Using the Snowden investigation as a guide, we know that HPSCI believes that if there’s an ongoing investigation, it should avoid speaking to anyone who knows evidence first-hand. It can instead rely on the impressions of people who don’t like the target of the investigation, as HPSCI did for claims that Snowden went to a hackers conference in China. It can also avoid reviewing official records, including public school records or even official Army records. Rather than do that, it may rely on imprecise citations of public reporting, interpreted in the light designed to be most damning. Any lies told — such as Snowden’s cover story that he’d be undergoing epilepsy treatment or Mike Flynn’s lies to Mike Pence — are themselves evidence of the worst possible guilt. Numbers are interpreted in the most damning possible light, even if more recent and informed numbers suggest something far less damning; those damning numbers came, in Snowden’s case, from a decision made by former DIA Director and recently fired National Security Advisor Flynn to assume any contact involved potential compromise.

Very importantly, HPSCI’s standard is that if anyone alleges contact between Russians and the target of an investigation, they should believed, even if that person is not in a position to know first hand. According to HPSCI standard, it is permissible to rely on dubious translations of Russian comments.

That’s the standard a Devin Nunes-led investigation holds to — or at last held to, with Snowden — before it deems an American citizen a traitor (irrespective of the very specific requirements of a treason charge).

Now, you can certainly argue that that’s a horrible standard for an intelligence committee investigation into allegations that an American citizen is spying for Russia. I have made that argument myself. But that is the standard HPSCI very recently set for serious allegations of possible intelligence compromises involving Russia.

Which is mighty curious, because Devin Nunes just gave a press conference claiming, categorically, that no Trump campaign personnel had any contact with any Russian official. That, in spite of public reporting relying on an interview with Russian Ambassador Sergey Kislyak that said his contacts with Trump campaign advisor Mike Flynn went back before November 8. That’s pretty good evidence that Trump’s campaign was in contact with a Russian official. (Later in his presser, Nunes acknowledged that Flynn spoke with Russia, though suggested that happened after Trump became President-Elect.)

And if Nunes applied the same standard to Trump’s associates he applied to Edward Snowden, then clearly the allegations in the Trump dossier should be presumed to be true (again, I’m not advocating for this, I’m talking about what would happen if HPSCI applied the same standard). That would mean Carter Page’s contacts with Kremlin Internal Affairs official Diyevkin would count as evidence of a contact. Carter Page’s other contacts were not named. Michael Cohen’s, which were alleged to be even more inflammatory, were done with Russian Presidential Administration figures working under cover, but would seem to meet the Nunes HPSCI standard. Paul Manafort’s contacts were with Ukrainians.

Finally, if HPSCI applied the same standards they did with Snowden, then the claims from Sergei Ryabkov that there were discussions before the election should amount to sufficient evidence to substantiate the claim.

Devin Nunes invoked McCarthyism in insisting his committee shouldn’t just investigate American citizens without evidence. But he apparently extends that standard differently to men on whose transition team he served.

Susan Collins Implies She Could Be a Swing Vote in SSCI’s Investigation of the Russian Hack

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The other day, I explained why we should remain skeptical of the congressional investigations into the Russian hack. Most importantly, I questioned Richard Burr’s seriousness. The investigation should be done by the House and/or Senate Intelligence Committee, and both Chairs of those committees have had Trump appointments in the last year.

That said, this Maine Public Radio interview with Susan Collins may provide reason for hope (see after 10 minutes and 39 minutes).

In it, she reiterated promises — made in the agreement on the inquiry — that the committee would do open hearings and release a public report.

I will encourage that there’ll be some public hearings as well as the closed hearings that we’re doing now and that we issue a report.

She also noted that she and others intend to call Mike Flynn to testify (though she didn’t say whether the interview would be open or not). Note, National Security Advisors cannot be subpoenaed (which is one basis why Devin Nunes said they couldn’t call Flynn).

I am going to request, many members are, that we call Steve Flynn–Mike Flynn, the former National Security Advisor to testify before us.

In addition, after 30 minutes, in response to a caller insisting that the inquiry be public, Collins noted that Republicans have just a one vote majority on the committee (though she didn’t point out that she could be the swing voter).

She was asked if she would subpoena Trump’s tax returns, and on that she said it would depend on Burr and Mark Warner. We shall see whether Warner has the chops to force that issue.

On both torture and drone memos, Collins has been willing to serve as a swing voter on SSCI before. If she does so here, it could make a difference.