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Questioning Bill Barr’s “No Collusion” Propaganda, Reggie Walton Orders an In Camera Review of Mueller Report

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Before the Trump Administration started really politicizing justice, Reggie Walton had already proven himself willing to stand up to the Executive Branch. During the George W Bush Administration, he presided over the Scooter Libby trial, never shirking from attacks from the defendant. And in the first year of the Obama Administration, as presiding FISA Judge, he shut down parts of the phone dragnet and the entire Internet dragnet because they were so far out of compliance with court orders.

And Walton had already showed his impatience with Trump’s stunts, most notably when presiding over a FOIA for materials related to the firing of Andrew McCabe. He finally forced DOJ to give the former Deputy FBI Director a prosecution declination so he could proceed with the FOIA lawsuit.

So it’s unsurprising he’s unpersuaded by DOJ’s request to dismiss the EPIC/BuzzFeed lawsuits over their FOIAs to liberate the Mueller Report, and has ordered DOJ to provide him a copy of the Report before the end of the month to do an in camera review of redactions in it.

The Court has grave concerns about the objectivity of the process that preceded the public release of the redacted version of the Mueller Report and its impacts on the Department’s subsequent justifications that its redactions of the Mueller Report are authorized by the FOIA. For the reasons set forth below, the Court shares the plaintiffs’ concern that the Department “dubious[ly] handl[ed] [ ] the public release of the Mueller Report.” EPIC’s Mem. at 40; see also id. (“Attorney General[] [Barr’s] attempts to spin the findings and conclusions of the [Mueller] Report have been challenged publicly by the author of the [Mueller] Report. [ ] Attorney[] General[] [Barr’s] characterization of the [Mueller] [R]eport has also been contradicted directly by the content of the [Mueller] Report.”); Leopold Pls.’ Mem. at 9 (“[T]here have been serious and specific accusations by other government officials about improprieties in the [Department’s] handling and characterization of the [Mueller] Report[.]”). Accordingly, the Court concludes that it must conduct an in camera review of the unredacted version of the Mueller Report to assess de novo the applicability of the particular exemptions claimed by the Department for withholding information in the Mueller Report pursuant to the FOIA.

To justify this review, Walton cites Barr’s silence about the multiple links between Trump and Russians and about the reason why Mueller didn’t make a decision about charging Trump with obstruction.

Special Counsel Mueller himself took exception to Attorney General Barr’s March 24, 2019 letter, stating that Attorney General Barr “did not fully capture the context, nature, and substance of th[e] [Special Counsel’s] Office’s work and conclusions,” EPIC’s Mot., Ex. 4 (March 27, 2019 Letter) at 1, and a review of the redacted version of the Mueller Report by the Court results in the Court’s concurrence with Special Counsel Mueller’s assessment that Attorney General Barr distorted the findings in the Mueller Report. Specifically, Attorney General Barr’s summary failed to indicate that Special Counsel Mueller “identified multiple contacts—‘links,’ in the words of the Appointment Order—between Trump [c]ampaign officials and individuals with ties to the Russian government,” Def.’s Mot., Ex. D (Mueller Report – Volume I) at 66, and that Special Counsel Mueller only concluded that the investigation did not establish that “these contacts involved or resulted in coordination or a conspiracy with the Trump [c]ampaign and Russia, including with respect to Russia providing assistance to the [Trump] [c]ampaign in exchange for any sort of favorable treatment in the future,” because coordination—the term that appears in the Appointment Order—“does not have a settled definition in federal criminal law,” id., Ex. D (Mueller Report – Volume I) at 2, 66. Attorney General Barr also failed to disclose to the American public that, with respect to Special Counsel Mueller’s investigation into whether President Trump obstructed justice, Special Counsel Mueller “determined not to make a traditional prosecutorial judgment[,] . . . recogniz[ing] that a federal criminal accusation against a sitting [p]resident would place burdens on the [p]resident’s capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct,” but nevertheless declared that

if [he] had confidence after a thorough investigation of the facts that [ ] President [Trump] clearly did not commit obstruction of justice, [he] would so state. Based on the facts and the applicable legal standards, however, [he] [is] unable to reach that judgment. The evidence [he] obtained about [ ] President[] [Trump’s] actions and intent presents difficult issues that prevent [him] from conclusively determining that no criminal conduct occurred. Accordingly, while th[e] [Mueller] [R]eport does not conclude that [ ] President [Trump] committed a crime, it also does not exonerate him.

Id., Ex. D (Mueller Report – Volume II) at 1–2.

Walton further cites claims that Barr made in his April 18 press conference and letter — where he specifically claimed Mueller had found no evidence of collusion — to judge that Barr lacked candor in his statements about the report.

Similar statements were made in his April 18, 2019 letter. See Def.’s Mot., Ex. 7 (April 18, 2019 Letter) at 1–3 (stating that Special Counsel Mueller’s “bottom-line conclusion on the question of so-called ‘collusion’ [was] [that] [t]he investigation did not establish that members of the Trump [c]ampaign conspired or coordinated with the Russian government in its election interference activities” and that “the evidence set forth in the [ ] [Mueller] [R]eport was [not] sufficient to establish that [ ] President [Trump] committed an obstruction-of-justice offense”).

As noted earlier, the Court has reviewed the redacted version of the Mueller Report, Attorney General Barr’s representations made during his April 18, 2019 press conference, and Attorney General Barr’s April 18, 2019 letter. And, the Court cannot reconcile certain public representations made by Attorney General Barr with the findings in the Mueller Report. The inconsistencies between Attorney General Barr’s statements, made at a time when the public did not have access to the redacted version of the Mueller Report to assess the veracity of his statements, and portions of the redacted version of the Mueller Report that conflict with those statements cause the Court to seriously question whether Attorney General Barr made a calculated attempt to influence public discourse about the Mueller Report in favor of President Trump despite certain findings in the redacted version of the Mueller Report to the contrary.

[snip]

Here, although it is with great consternation, true to the oath that the undersigned took upon becoming a federal judge, and the need for the American public to have faith in the judicial process, considering the record in this case, the Court must conclude that the actions of Attorney General Barr and his representations about the Mueller Report preclude the Court’s acceptance of the validity of the Department’s redactions without its independent verification.

Walton doesn’t say it explicitly, but he seems to believe what the unredacted portions of the report show amount to “collusion,” the kind of collusion Trump would want to and did (and still is) covering up.

Be warned, however, that this review is not going to lead to big revelations in the short term.

There are several reasons for that. Many of the most substantive redactions pertain to the Internet Research Agency and Roger Stone cases. Gags remain on both. While Walton is not an Article II pushover, he does take national security claims very seriously, and so should be expected to defer to DOJ’s judgments about those redactions.

Where this ruling may matter, though, is in four areas:

  • DOJ hid the circumstances of how both Trump and Don Jr managed to avoid testifying under a grand jury redaction. Walton may judge that these discussions were not truly grand jury materials.
  • DOJ is currently hiding details of people — like KT McFarland — who lied, but then cleaned up their story (Sam Clovis is another person this may be true of). There’s no reason someone as senior as McFarland should have her lies protected. All the more so, because DOJ is withholding some of the 302s that show her lies. So Walton may release some of this information.
  • Because Walton will have already read the Stone material — that part that most implicates Trump — by the time Judge Amy Berman Jackson releases the gag in that case, he will have a view on what would still need to be redacted. That may mean more of it will be released quickly than otherwise might happen.
  • In very short order, the two sides in this case will start arguing over DOJ’s withholding of 302s under very aggressive b5 claims. These claims, unlike most of the redactions in the Mueller Report, are substantively bogus and in many ways serve to cover up the details of Trump’s activities. While this won’t happen in the near term, I expect this ruling will serve as the basis for a similar in camera review on 302s down the road.

Update: Here’s the FOIA version of the Mueller Report; here is Volume II. The b1 and b3 redactions won’t be touched in this review. Where Walton might order releases are the b6, b7C redactions. I expect Walton may order these redactions removed, which show that Don Jr and someone else was investigated.

Update: I did a post last August about what Walton might do with these redactions. It holds up, IMO.

The Stakes and Misinformation about the Andrew McCabe Declination

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Amid the other crazy events of the week, DOJ informed Andrew McCabe he would not be prosecuted as a result of the criminal referral arising from DOJ IG’s finding that he lacked candor when asked about an October 30, 2016 Devlin Barrett story.

While it’s possible the Tuesday Afternoon Massacre and Jessie Liu’s removal had some role in the timing of this notice, one thing is clear: McCabe got notice primarily because Judge Reggie Walton had imposed a deadline in a CREW FOIA to release some transcripts about the stalled decision-making process. Probably, DOJ made the decision last fall after a grand jury refused to charge McCabe, but stalled on giving McCabe notice because DOJ knew it would piss off Trump. But since the court transcripts would reveal some of that, the FOIA deadline finally forced DOJ’s hand.

In the aftermath of the McCabe news, a bunch of frothy Republicans, including Chuck Grassley, have analogized the investigation into McCabe with the investigations into Roger Stone (for conducting a two year cover-up, including making threats against a witness and a judge) and Mike Flynn (for lying multiple times to the FBI, continuing to fudge the truth in the ongoing investigation, and lying to hide that he was on Turkey’s payroll at a time when he was Trump’s top national security advisor). Even taken on their face, that’s a ridiculous comparison, one that dismisses the import of threatening judges and secretly serving as agents for frenemy governments while receiving intelligence briefings. The accusations against the men are different, with a lack of candor allegation against McCabe versus lying against the others, and egregious mitigating factors implicating national security with the others. Whereas grand jury reportedly refused to even charge McCabe, a jury found Stone guilty of every count with which he was charged.

More importantly, the comparison has treated the allegation against McCabe with a seriousness that the underlying record — as laid out in McCabe’s lawsuit against DOJ — does not merit.

And McCabe’s lawsuit may provide a partial explanation for why DOJ stalled so long before declining to prosecute the case. That’s because a key part of DOJ’s defense against McCabe’s lawsuit is that they could or even had to move so quickly to fire McCabe because there was reasonable reason to believe that McCabe had committed a crime for which he could be imprisoned.

Mr. McCabe was given seven days to provide oral and written responses to the notice of proposed removal to ADAG Schools. That response period was a departure from the 30-day response period more frequently provided for a proposed removal. But FBI policy governing the removal of Senior Executive Service (SES) employees provides that “if there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment can be imposed, the advance notice may be curtailed to as little as seven days.” FBI SES Policy at 16 (attached as Ex. 2). Given the Inspector General’s findings that Mr. McCabe lacked candor under oath, findings which Assistant Director Will seconded after her independent assessment, there was reasonable cause to believe that Mr. McCabe had committed a crime for which a sentence could be imposed—and, therefore, a sound basis for affording Mr. McCabe seven days to respond.

DOJ has excused their rush to fire McCabe based on having reasonable grounds to believe he could be prosecuted for lies, but the rush to fire McCabe resulted in DOJ ignoring clear evidence that the IG Report was fundamentally flawed in a way that easily explains why a grand jury would refuse to indict. So the lawsuit, if McCabe gets discovery, is likely to show that he was rushed out the door to prevent him from building the case that he was being rushed out the door based on a case riddled with problems.

When the IG Report came out, I found it pretty compelling and therefore the criminal referral understandable (though I did not believe criminal charges would be upheld), even while noting the big push to make that happen before McCabe retired delegitimized it. But now it’s clear that the report didn’t get the normal level of pre- and post-publication review, McCabe’s OPR process was rushed to beat his retirement deadline, and had either of those processes been conducted in the normal fashion, they would have likely caught significant problems with the report.

Indeed, McCabe presented compelling evidence — even in a very rushed written response submitted to OPR hours before Jeff Sessions fired him — that he had at least colorable explanations to rebut the IG Report allegations.

As laid out, the IG Report accused McCabe of lacking candor about two kinds of things: first, whether he had told Comey he was a source for the WSJ story, and what role he and Lisa Page had in the story. Both the middle meetings — May 9, 2017, hours before Comey’s firing and his ascension to Acting Director, and July 28, 2017, in the context of a meeting about the discovery of the Page-Strzok texts — were on two of the most momentous days of McCabe’s career. The other two pertain to whether or not McCabe told Comey about his involvement in the WSJ story, which the IG Report portrayed as a difference of opinion about a casual meeting the two had, about which the IG sided with Comey’s version.

Thus, to a significant degree, the question of McCabe’s candor pivoted on whether he had really told Comey he was involved in the WSJ story.

And, as McCabe alerted OPR before he got fired, the IG Report included no mention of one of the most central players in the October 2016 WSJ story, FBI’s Assistant Director of Public Affairs Michael Kortan, with whom McCabe worked closely on the WSJ story. In other words, the IG Report suffers from the kind of egregious failure to include exculpatory information that it just took FBI to task about in the Carter Page IG Report (which also happens to be true of the Carter Page IG Report generally and its treatment of Bruce Ohr specifically). So when the IG Report sides with Comey’s version of the story because,

no other senior FBI official corroborated McCabe’s testimony that, among FBI executive leadership, “people knew generally” he had authorized the disclosure,

The Report can only make such a claim because it entirely left out the testimony of one of the most central players, Kortan. And as McCabe has made clear, in the OPR adjudication, his team did not get the exculpatory information involving Kortan until two days before the final decision.

Reports of why the grand jury refused to indict have pointed to Kortan’s testimony, and it’s clear why: because his testimony totally undermines the conclusions of the IG Report and therefore any basis to indict him.

Most importantly, McCabe submitted an email showing that he informed Comey (and some of the other senior FBI people whom the IG Report claimed didn’t know he was involved) that he was involved in the WSJ story.

With the declination of McCabe, DOJ has admitted that a key reason they claim to have relied on (a claim McCabe disputes) on rushing McCabe’s firing is false: he’s not likely to face prison time, because a grand jury won’t even indict him. And that may increase the chances that McCabe will get to prove precisely why he was rushed out the door with Trump screaming about him all the way.

Rosemary Collyer Responds to the DOJ IG Report in Fairly Blasé Fashion

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Judge Rosemary Collyer just released a four page order responding to the DOJ IG Report showing problems with Carter Page’s FISA applications.

Before I explain the letter further, let me just explain for those who haven’t followed my FISA work. Collyer is the presiding judge of the court. Traditionally, it falls to the presiding judge to scold DOJ when things go haywire, and so it was to be expected that Collyer would write this. Collyer is nowhere near the most aggressive presiding judge in the court’s history (that honor might go to Reggie Walton, though Royce Lamberth was presiding when the Woods Procedures that weren’t followed here were introduced after he bitched about systematic problems). As an example, she wrote what I consider to be among the worst programmatic FISA opinions not written by a Dick Cheney flunkie, and she was reluctant to implement the new amicus mandated by Congress in the USA Freedom Act.

Predictably, while this is a sharp opinion, it’s not that onerous. She starts by spending a page explaining why candor is so important for the FISC, language that is probably for the benefit of those unfamiliar with the court. She cites three prior opinions complaining about lack of candor, just one of which I consider among the greatest hits.

She then reviews the problems laid out in the IG Report she considers most important, citing:

  • The failure to explain Carter Page’s past relationship with the CIA
  • Exaggerations about the degree to which Christopher Steele’s reporting had been corroborated
  • Contradictions of Steele’s claims made by his sub-source
  • Page’s denials he had worked closely with Paul Manafort
  • Page’s denials he knew the two Russians described in the Steele dossier
  • Details suggesting claims attributed to Sergei Millian in the dossier were unreliable

In addition, Collyer dedicates a paragraph to describing Kevin Clinesmith’s alteration of an email to hide Page’s prior CIA relationship, alluding to a prior order in which she seems to have ordered a review of everything he had touched.

In addition, while the fourth electronic surveillance application for Mr. Page was being prepared, an attorney in the FBI’s Office of General Counsel (OGC) engaged in conduct that apparently was intended to mislead the FBI agent who ultimately swore to the facts in that application about whether Mr. Page had been a source of another government agency. See id. at 252-56. The information about the OGC attorney’s conduct in the OIG report is consistent with classified submissions made to the FISC by the government on October 25, 2019, and November 27, 2019. Because the conduct ofthe OGC attorney gave rise to serious concerns about the accuracy and completeness of the information provided to the FISC in any matter in which the OGC attorney was involved, the Court ordered the government on December 5, 2019, to, among other things, provide certain information addressing those concerns.

In addition to ordering the declassification of that December 5 order, Collyer also ordered the FBI to explain, by January 10, what they’re going to do to fix the more general problem.

THEREFORE, the Court ORDERS that the government shall, no later than January 10, 2020, inform the Court in a sworn written submission of what it has done, and plans to do, to ensure that the statement of facts in each FBI application accurately and completely reflects information possessed by the FBI that is material to any issue presented by the application. In the event that the FBI at the time of that submission is not yet able to perform any of the planned steps described in the submission, it shall also include (a) a proposed timetable for implementing such measures and (b) an explanation of why, in the government’s view, the information in FBI applications submitted in the interim should be regarded as reliable.

So she’s not calling for the FISC itself to do anything different. FBI will likely provide a plan implementing the FISC-based recommendations made by Michael Horowitz, as well as additional updates to the Woods Procedures.

This is, in the grand scheme of things, an order deferring to the government to fix the problem, not an order designed to impose new requirements (of the kind Lamberth himself ordered years ago) from the court until FBI proves it has cleaned up its act.

Which leaves it up to Congress to impose any more substantive fixes.

The Conspiracy Theories Flynn Wants to Resuscitate and the McCabe Investigation

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Lost in the frenzy regarding the conspiracy theories Rudy Giuliani is planting and the Attorney General is personally chasing is the government’s response to Mike Flynn’s purported “Brady” demand — which accuses Flynn lawyer Sidney Powell of planting conspiracy theories. I tweeted about the package in this thread. While there may be a dispute about a few items, I correctly predicted that the main legal question is whether Emmet Sullivan will interpret his standing Brady order — requiring that prosecutors turn over Brady information even for defendants pleading guilty — will extend to Giglio information impeaching witnesses. In response to a request for any Brady or Giglio information discovered by DOJ’s Inspector General in the last two years, DOJ states flat out Giglio is not covered by Sullivan’s order.

The government has already provided the defendant with all Brady material; it is not obligated to provide Giglio material pursuant to the Court’s Standing Order, United States v. Flynn, 17-cr-232 (D.D.C. Feb. 16, 2018) (Doc. 20).

And much of the rest of what Powell is asking for, pertaining to Peter Strzok at least, would be Giglio.

That said, there is a part of the government’s substantiation that Sidney Powell is sowing conspiracy theories that deserves more attention. The government lays out how Flynn lawyer Rob Kelner asked the government three times about a conspiracy theory that Andrew McCabe, before Powell asked a fourth time.

The defendant’s complaints and accusations are even more incredible considering the extensive efforts the government has made to respond to numerous defense counsel requests, including to some of the very requests repeated in the defendant’s motion. For instance, the defendant alleges that former FBI Deputy Director Andrew McCabe said, “‘First we f**k Flynn, then we f**k Trump,’ or words to that effect;” and that Deputy Director McCabe pressured the agents to change the January 24 interview report. See Mot. to Compel at 4, 6 (Request ##2, 22). Defense counsel first raised these allegations to the government on January 29, 2018, sourcing it to an email from a news reporter. Not only did the government inform defense counsel that it had no information indicating that the allegations were true, it conducted additional due diligence about this serious allegation. On February 2, 2018, the government disclosed to the defendant and his counsel that its due diligence confirmed that the allegations were false, and referenced its interview of the second interviewing agent, who completely denied the allegations. Furthermore, on March 13, 2018, the government provided the defendant with a sworn statement from DAD Strzok, who also denied the allegations.

Nevertheless, on July 17, 2018, the defense revived the same allegations. This time, the defense claimed that the source was a staff member of the House Permanent Select Committee on Intelligence (“HPSCI”). The HPSCI staff member allegedly told the defendant that the second interviewing agent had told the staff member that after a debrief from the interviewing agents, Deputy Director McCabe said, “F**k Flynn.” Once again, the government reviewed information and conducted interviews, and once again confirmed that the allegations were completely false. And after defendant and his counsel raised the accusation for a third time, on October 15, 2018, the government responded by producing interview reports that directly contradicted the false allegations. Despite possessing all of this information, defense counsel has again resurrected the false allegations, now for a fourth time. See Mot. to Compel at 4, 6 (Request ##2, 22)

The persistence of this conspiracy theory — and HPSCI’s role in perpetuating it — is significant for another reason.

The IG Report on Andrew McCabe discusses how DOJ IG came to investigation McCabe this way.

In May 2017, the FBI Inspection Division (INSD) expanded a pre-existing investigation of media leaks to include determining the source of the information in the October 30 WSJ article regarding the August 12 McCabe-PADAG call. INSD added the October 30 article to their pre-existing matter because it appeared to involve an instance of someone at the FBI leaking the Deputy Director’s private conversations to the media.

The backstory to this is that Jim Comey asked the Inspection Division to investigate leaks (remember, something Trump had demanded). But the “pre-existing” investigation referenced reportedly pertained to the same conspiracy theory: that someone had leaked to the press that McCabe had said “First we fuck Flynn, then we fuck Trump” in front of some FBI Agents. (I believe the Circa story cited here eventually came to be part of the investigation, but TruePundit claims credit for the conspiracy, pointing to a version that temporally matches the timeline.)

Note the asymmetry to this story.

No DOJ entity, whether FBI’s Inspection Division, DOJ IG, or Flynn’s prosecutors have presented the public proof that this serial conspiracy theory has been debunked — much less chase down the Agents who keeps spreading it and prosecute them. But because the Inspector Division asked McCabe who might be leaking about him (which is what the initial question was), he is being pursued in an investigation that Reggie Walton denounced the other day.

This is how conspiracy theories about what DOJ and FBI did in the last three years are allowed to persist, much less get reentered into court filings that otherwise would get the lawyers doing so sanctioned.

What I Would Do with the Mueller Report If I Were Reggie Walton

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According to Politico, a hearing in the EPIC/BuzzFeed effort to liberate the Mueller Report went unexpectedly well today. It seems that Bill Barr’s propaganda effort to spin the results of the Mueller Report got Walton’s hackles up, leading him to believe that Barr’s effort covered up the degree to which Trump “colluded” with Russia.

Walton said he had “some concerns” about trying to reconcile public statements Trump and Attorney General William Barr have made about the report with the content of the report itself.

The judge pointed to Trump’s claims that Mueller found “no collusion” between his campaign and Russia and the president’s insistence that he had been exonerated from a possible obstruction of justice charge. These comments, Walton said, appeared bolstered by Barr’s description of Mueller’s findings during a DOJ news conference — before the public and media could read the document for themselves.

“It’d seem to be inconsistent with what the report itself said,” Walton said. The judge also cited a letter Mueller’s office sent to Barr questioning the attorney general’s decision to release a four-page summary of the investigation’s conclusions that “did not fully capture the context, nature and substance” of the report.

Separately on Monday, Walton raised questions about a DOJ submission defending the agency’s decision to black out large portions of the Mueller report.

“I also worked for the department,” Walton said. “Sometimes the body does what the head wants.”

I thought I’d lay out what I would do if I were Judge Walton. I’d make different decisions if I were a judge, but having covered some of his biggest confrontations with an expansive Executive, I’m pretending I can imagine how he’d think.

I’m doing this not because I think he’ll follow my guidance, but to establish what I think might be reasonable things to imagine he’ll review for unsealing.

Unseal the discussions of how Donald Trump père and fils avoided testifying to the grand jury

As I have noted, there are two passages apiece that describe how Donald Trump Sr and Donald Trump Jr avoided testifying to the grand jury. While they might discuss the grand jury’s interest in subpoenaing the men, and while they might (both!) say that the men would invoke the Fifth if forced to show up and invoke it, those passages likely don’t describe that the men did so.

Particularly given Jr’s willingness to testify to Congressional committees that likely don’t have all the documents from Trump Organization that Mueller had, those passages should be unsealed unless they involve real grand jury decisions.

Unseal the names of Trump flunkies against whom investigations were opened in October 2017

The most obviously dishonest thing Bill Barr did in releasing the Mueller Report is claim that those against whom prosecutions were declined were peripheral people. At least one person (and up to three people) in this passage is not: Don Jr. Walton should unseal these names, especially given that Barr lied about how peripheral, at least, the President’s son is.

Review the longer descriptions of those who lied but weren’t charged

There are up to three people that Mueller appears to have considered for perjury charges (page 194 and two people on page 199) and at least one more whom he considered charging for false statements. Some of the discussion of the people in the former category include non grand jury material as well.

If I were Walton, I’d review this entire section and (treating Roger Stone separately) would unseal at least the names of the senior Trump officials not charged (one is KT McFarland). Given the treatment of Jeff Sessions — whose prosecution declination was not sealed — DOJ has already treated people inconsistently in this section.

Review the declinations starting on page 176, page 179, and page 188 for possible unsealing

There are three declinations that are candidates for unsealing. The most important — which describes the office’s consideration of charging WikiLeaks’ releases of stolen emails as an illegal campaign donation — is the last one. It raises real campaign finance questions and would feed right into impeachment.

The charging decision on page 179 may explain why Don Jr wasn’t charged for sharing a link to a non-public site releasing stolen emails (but it could also pertain to someone no one knows who tried to hack Guccifer 2.0). If it’s the former, if I were Walton, I might consider unsealing that.

The most interesting charging decision, starting on page 176, may explain why WikiLeaks wasn’t charged, why Stone wasn’t or why others were not. If it’s WikiLeaks, it’s the kind of decision already made public in the recent SDNY decision and could be released. In any case, that’s a redaction that likely would be worth Walton’s judicial consideration.

Order that Roger Stone sections be unsealed if there’s a substantive change in his gag order

A huge chunk of the remaining redactions pertain to Roger Stone or his trial. They also are among the most damning to Trump, as they implicate him personally in trying to make the most of Russia’s effort to help him. I, as Marcy Wheeler, would love to see them, today.

But Reggie Walton, who presumably eats lunch with Amy Berman Jackson in the DC District Judges cafeteria, will also recognize the difficulties she faces in seating a jury for the trial of the President’s rat-fucker in November. So unless something changes to the status quo — in which ABJ has imposed a strict gag on Stone — then I suspect he’ll cede to her judgment.

And, frankly, anyone who’d like to see Stone face some kind of repercussions for his rat-fuckery should also support him getting a fair trial, meaning they should support the continued sealing.

That doesn’t stop Walton from ordering that if something changes — if Stone wins an appeal he announced today to get his gag overturned, if Trump pardons Stone, or if Stone pleads — then the sections will automatically become unsealed. One of the biggest ways Trump can avoid all repercussion for his efforts to optimize the release of stolen information is to have Stone avoid trial (either by pleading or being pardoned) but preventing a reconsideration of redactions done to protect his right to a fair trial.

Leave national security sections sealed because I’m Reggie Walton

I and many others would love to see more of the IRA and GRU sections (though there’s a gag in the IRA case now too), especially those sections about how GRU passed on materials to WikiLeaks.

But I’m not Reggie Walton. While he’s very happy to take on an expansive Executive, he generally shows significant deference for claims of national security. Thus, I expect he’ll likely leave this stuff sealed.

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

A Dragnet of emptywheel’s Most Important Posts on Surveillance, 2007 to 2017

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Happy Birthday to me! To us! To the emptywheel community!

On December 3, 2007, emptywheel first posted as a distinct website. That makes us, me, we, ten this week.

To celebrate, the emptywheel team has been sharing some of our favorite work from the last decade. This is my massive dragnet of surveillance posts.

For years, we’ve done this content ad free, relying on donations and me doing freelance work for others to fund the stuff you read here. I would make far more if I worked for some free-standing outlet, but I wouldn’t be able to do the weedy, iterative work that I do here, which would amount to not being able to do my best work.

If you’ve found this work valuable — if you’d like to ensure it remains available for the next ten years — please consider supporting the site.

2007

Whitehouse Reveals Smoking Gun of White House Claiming Not to Be Bound by Any Law

Just days after opening the new digs, I noticed Sheldon Whitehouse entering important details into the Senate record — notably, that John Yoo had pixie dusted EO 12333 to permit George Bush to authorize the Stellar Wind dragnet. In the ten years since, both parties worked to gradually expand spying on Americans under EO 12333, only to have Obama permit the sharing of raw EO 12333 data in its last days in office, completing the years long project of restoring Stellar Wind’s functionalities. This post, from 2016, analyzes a version of the underlying memo permitting the President to change EO 12333 without providing public notice he had done so.

2008

McConnell and Mukasey Tell Half Truths

In the wake of the Protect America Act, I started to track surveillance legislation as it was written, rather than figure out after the fact how the intelligence community snookered us. In this post, I examined the veto threats Mike McConnell and Michael Mukasey issued in response to some Russ Feingold amendments to the FISA Amendments Act and showed that the government intended to use that authority to access Americans’ communication via both what we now call back door searches and reverse targeting. “That is, one of the main purposes is to collect communications in the United States.”

9 years later, we’re still litigating this (though, since then FISC has permitted the NSA to collect entirely domestic communications under the 2014 exception).

2009

FISA + EO 12333 + [redacted] procedures = No Fourth Amendment

The Government Sez: We Don’t Have a Database of All Your Communication

After the FISCR opinion on what we now know to be the Yahoo challenge to Protect American Act first got declassified, I identified several issues that we now have much more visibility on. First, PAA permitted spying on Americans overseas under EO 12333. And it didn’t achieve particularity through the PAA, but instead through what we know to be targeting procedures, including contact chaining. Since then we’ve learned the role of SPCMA in this.

In addition, to avoid problems with back door searches, the government claimed it didn’t have a database of all our communication — a claim that, narrowly parsed might be true, but as to the intent of the question was deeply misleading. That claim is one of the reasons we’ve never had a real legal review of back door searches.

Bush’s Illegal Domestic Surveillance Program and Section 215

On PATRIOTs and JUSTICE: Feingold Aims for Justice

During the 2009 PATRIOT Act reauthorization, I continued to track what the government hated most as a way of understanding what Congress was really authorizing. I understood that Stellar Wind got replaced not just by PAA and FAA, but also by the PATRIOT authorities.

All of which is a very vague way to say we probably ought to be thinking of four programs–Bush’s illegal domestic surveillance program and the PAA/FAA program that replaced it, NSLs, Section 215 orders, and trap and trace devices–as one whole. As the authorities of one program got shut down by exposure or court rulings or internal dissent, it would migrate to another program. That might explain, for example, why Senators who opposed fishing expeditions in 2005 would come to embrace broadened use of Section 215 orders in 2009.

I guessed, for example, that the government was bulk collecting data and mining it to identify targets for surveillance.

We probably know what this is: the bulk collection and data mining of information to select targets under FISA. Feingold introduced a bajillion amendments that would have made data mining impossible, and each time Mike McConnell and Michael Mukasey would invent reasons why Feingold’s amendments would have dire consequences if they passed. And the legal information Feingold refers to is probably the way in which the Administration used EO 12333 and redacted procedures to authorize the use of data mining to select FISA targets.

Sadly, I allowed myself to get distracted by my parallel attempts to understand how the government used Section 215 to obtain TATP precursors. As more and more people confirmed that, I stopped pursuing the PATRIOT Act ties to 702 as aggressively.

2010

Throwing our PATRIOT at Assange

This may be controversial, given everything that has transpired since, but it is often forgotten what measures the US used against Wikileaks in 2010. The funding boycott is one thing (which is what led Wikileaks to embrace Bitcoin, which means it is now in great financial shape). But there’s a lot of reason to believe that the government used PATRIOT authorities to target not just Wikileaks, but its supporters and readers; this was one hint of that in real time.

2011

The March–and April or May–2004 Changes to the Illegal Wiretap Program

When the first iteration of the May 2004 Jack Goldsmith OLC memo first got released, I identified that there were multiple changes made and unpacked what some of them were. The observation that Goldsmith newly limited Stellar Wind to terrorist conversations is one another reporter would claim credit for “scooping” years later (and get the change wrong in the process). We’re now seeing the scope of targeting morph again, to include a range of domestic crimes.

Using Domestic Surveillance to Get Rapists to Spy for America

Something that is still not widely known about 702 and our other dragnets is how they are used to identify potential informants. This post, in which I note Ted Olson’s 2002 defense of using (traditional) FISA to find rapists whom FBI can then coerce to cooperate in investigations was the beginning of my focus on the topic.

2012

FISA Amendments Act: “Targeting” and “Querying” and “Searching” Are Different Things

During the 2012 702 reauthorization fight, Ron Wyden and Mark Udall tried to stop back door searches. They didn’t succeed, but their efforts to do so revealed that the government was doing so. Even back in 2012, Dianne Feinstein was using the same strategy the NSA currently uses — repeating the word “target” over and over — to deny the impact on Americans.

Sheldon Whitehouse Confirms FISA Amendments Act Permits Unwarranted Access to US Person Content

As part of the 2012 702 reauthorization, Sheldon Whitehouse said that requiring warrants to access the US person content collected incidentally would “kill the program.” I took that as confirmation of what Wyden was saying: the government was doing what we now call back door searches.

2013

20 Questions: Mike Rogers’ Vaunted Section 215 Briefings

After the Snowden leaks started, I spent a lot of time tracking bogus claims about oversight. After having pointed out that, contrary to Administration claims, Congress did not have the opportunity to be briefed on the phone dragnet before reauthorizing the PATRIOT Act in 2011, I then noted that in one of the only briefings available to non-HPSCI House members, FBI had lied by saying there had been no abuses of 215.

John Bates’ TWO Wiretapping Warnings: Why the Government Took Its Internet Dragnet Collection Overseas

Among the many posts I wrote on released FISA orders, this is among the most important (and least widely understood). It was a first glimpse into what now clearly appears to be 7 years of FISA violation by the PRTT Internet dragnet. It explains why they government moved much of that dragnet to SPCMA collection. And it laid out how John Bates used FISA clause 1809(a)(2) to force the government to destroy improperly collected data.

Federated Queries and EO 12333 FISC Workaround

In neither NSA nor FBI do the authorities work in isolation. That means you can conduct a query on federated databases and obtain redundant results in which the same data point might be obtained via two different authorities. For example, a call between Michigan and Yemen might be collected via bulk collection off a switch in or near Yemen (or any of the switches between there and the US), as well as in upstream collection from a switch entering the US (and all that’s assuming the American is not targeted). The NSA uses such redundancy to apply the optimal authority to a data point. With metadata, for example, it trained analysts to use SPCMA rather than PATRIOT authorities because they could disseminate it more easily and for more purposes. With content, NSA appears to default to PRISM where available, probably to bury the far more creative collection under EO 12333 for the same data, and also because that data comes in structured form.

Also not widely understood: the NSA can query across metadata types, returning both Internet and phone connection in the same query (which is probably all the more important now given how mobile phones collapse the distinction between telephony and Internet).

This post described how this worked with the metadata dragnets.

The Purpose(s) of the Dragnet, Revisited

The government likes to pretend it uses its dragnet only to find terrorists. But it does far more, as this analysis of some court filings lays out.

2014

The Corporate Store: Where NSA Goes to Shop Your Content and Your Lifestyle

There’s something poorly understood about the metadata dragnets NSA conducts. The contact-chaining isn’t the point. Rather, the contact-chaining serves as a kind of nomination process that puts individuals’ selectors, indefinitely, into the “corporate store,” where your identity can start attracting other related datapoints like a magnet. The contact-chaining is just a way of identifying which people are sufficiently interesting to submit them to that constant, ongoing data collection.

SPCMA: The Other NSA Dragnet Sucking In Americans

I’ve done a lot of work on SPCMA — the authorization that, starting in 2008, permitted the NSA to contact chain on and through Americans with EO 12333 data, which was one key building block to restoring access to EO 12333 analysis on Americans that had been partly ended by the hospital confrontation, and which is where much of the metadata analysis affecting Americans has long happened. This was my first comprehensive post on it.

The August 20, 2008 Correlations Opinion

A big part of both FBI and NSA’s surveillance involves correlating identities — basically, tracking all the known identities a person uses on telephony and the Internet (and financially, though we see fewer details of that), so as to be able to pull up all activities in one profile (what Bill Binney once called “dossiers”). It turns out the FISC opinion authorizing such correlations is among the documents the government still refuses to release under FOIA. Even as I was writing the post Snowden was explaining how it works with XKeyscore.

A Yahoo! Lesson for USA Freedom Act: Mission Creep

This is another post I refer back to constantly. It shows that, between the time Yahoo first discussed the kinds of information they’d have to hand over under PRISM in August 2007 and the time they got directives during their challenge, the kinds of information they were asked for expanded into all four of its business areas. This is concrete proof that it’s not just emails that Yahoo and other PRISM providers turn over — it’s also things like searches, location data, stored documents, photos, and cookies.

FISCR Used an Outdated Version of EO 12333 to Rule Protect America Act Legal

Confession: I have an entire chapter of the start of a book on the Yahoo challenge to PRISM. That’s because so much about it embodied the kind of dodgy practices the government has, at the most important times, used with the FISA Court. In this post, I showed that the documents that the government provided the FISCR hid the fact that the then-current versions of the documents had recently been modified. Using the active documents would have shown that Yahoo’s key argument — that the government could change the rules protecting Americans anytime, in secret — was correct.

2015

Is CISA the Upstream Cyber Certificate NSA Wanted But Didn’t Really Get?

Among the posts I wrote on CISA, I noted that because the main upstream 702 providers have a lot of federal business, they’ll “voluntarily” scan on any known cybersecurity signatures as part of protecting the federal government. Effectively, it gives the government the certificate it wanted, but without any of the FISA oversight or sharing restrictions. The government has repeatedly moved collection to new authorities when FISC proved too watchful of its practices.

The FISA Court’s Uncelebrated Good Points

Many civil libertarians are very critical of the FISC. Not me. In this post I point out that it has policed minimization procedures, conducted real First Amendment reviews, taken notice of magistrate decisions and, in some cases, adopted the highest common denominator, and limited dissemination.

How the Government Uses Location Data from Mobile Apps

Following up on a Ron Wyden breadcrumb, I figured out that the government — under both FISA and criminal law — obtain location data from mobile apps. While the government still has to adhere to the collection standard in any given jurisdiction, obtaining the data gives the government enhanced location data tied to social media, which can implicate associates of targets as well as the target himself.

The NSA (Said It) Ate Its Illegal Domestic Content Homework before Having to Turn It in to John Bates

I’m close to being able to show that even after John Bates reauthorized the Internet metadata dragnet in 2010, it remained out of compliance (meaning NSA was always violating FISA in obtaining Internet metadata from 2002 to 2011, with a brief lapse). That case was significantly bolstered when it became clear NSA hastily replaced the Internet dragnet with obtaining metadata from upstream collection after the October 2011 upstream opinion. NSA hid the evidence of problems on intake from its IG.

FBI Asks for at Least Eight Correlations with a Single NSL

As part of my ongoing effort to catalog the collection and impact of correlations, I showed that the NSL Nick Merrill started fighting in 2004 asked for eight different kinds of correlations before even asking for location data. Ultimately, it’s these correlations as much as any specific call records that the government appears to be obtaining with NSLs.

2016

What We Know about the Section 215 Phone Dragnet and Location Data

During the lead-up to the USA Freedom Debate, the government leaked stories about receiving a fraction of US phone records, reportedly because of location concerns. The leaks were ridiculously misleading, in part because they ignored that the US got redundant collection of many of exactly the same calls they were looking for from EO 12333 collection. Yet in spite of these leaks, the few figured out that the need to be able to force Verizon and other cell carriers to strip location data was a far bigger reason to pass USAF than anything Snowden had done. This post laid out what was known about location data and the phone dragnet.

While It Is Reauthorizing FISA Amendments Act, Congress Should Reform Section 704

When Congress passed FISA Amendments Act, it made a show of providing protections to Americans overseas. One authority, Section 703, was for spying on people overseas with help of US providers, and another was for spying on Americans overseas without that help. By May 2016, I had spent some time laying out that only the second, which has less FISC oversight, was used. And I was seeing problems with its use in reporting. So I suggested maybe Congress should look into that?

It turns out that at precisely that moment, NSA was wildly scrambling to get a hold on its 704 collection, having had an IG report earlier in the year showing they couldn’t audit it, find it all, or keep it within legal boundaries. This would be the source of the delay in the 702 reauthorization in 2016, which led to the prohibition on about searches.

The Yahoo Scan: On Facilities and FISA

The discussion last year of a scan the government asked Yahoo to do of all of its users was muddled because so few people, even within the privacy community, understand how broadly the NSA has interpreted the term “selector” or “facility” that it can target for collection. The confusion remains to this day, as some in the privacy community claim HPSCI’s use of facility based language in its 702 reauthorization bill reflects new practice. This post attempts to explain what we knew about the terms in 2016 (though the various 702 reauthorization bills have offered some new clarity about the distinctions between the language the government uses).

2017

Ron Wyden’s History of Bogus Excuses for Not Counting 702 US Person Collection

Ron Wyden has been asking for a count of how many Americans get swept up under 702 for years. The IC has been inventing bogus explanations for why they can’t do that for years. This post chronicles that process and explains why the debate is so important.

The Kelihos Pen Register: Codifying an Expansive Definition of DRAS?

When DOJ used its new Rule 41 hacking warrant against the Kelihos botnet this year, most of the attention focused on that first-known usage. But I was at least as interested in the accompanying Pen Register order, which I believe may serve to codify an expansion of the dialing, routing, addressing, and signaling information the government can obtain with a PRTT. A similar codification of an expansion exists in the HJC and Lee-Leahy bills reauthorizing 702.

The Problems with Rosemary Collyer’s Shitty Upstream 702 Opinion

The title speaks for itself. I don’t even consider Rosemary Collyer’s 2017 approval of 702 certificates her worst FISA opinion ever. But it is part of the reason why I consider her the worst FISC judge.

It Is False that Downstream 702 Collection Consists Only of To and From Communications

I pointed out a number of things not raised in a panel on 702, not least that the authorization of EO 12333 sharing this year probably replaces some of the “about” collection function. Most of all, though, I reminded that in spite of what often gets claimed, PRISM is far more than just communications to and from a target.

UNITEDRAKE and Hacking under FISA Orders

A document leaked by Shadow Brokers reveals a bit about how NSA uses hacking on FISA targets. Perhaps most alarmingly, the same tools that conduct such hacks can be used to impersonate a user. While that might be very useful for collection purposes, it also invites very serious abuse that might create a really nasty poisonous tree.

A Better Example of Article III FISA Oversight: Reaz Qadir Khan

In response to Glenn Gerstell’s claims that Article III courts have exercised oversight by approving FISA practices (though the reality on back door searches is not so cut and dry), I point to the case of Reaz Qadir Khan where, as Michael Mosman (who happens to serve on FISC) moved towards providing a CIPA review for surveillance techniques, Khan got a plea deal.

The NSA’s 5-Page Entirely Redacted Definition of Metadata

In 2010, John Bates redefined metadata. That five page entirely redacted definition became codified in 2011. Yet even as Congress moves to reauthorize 702, we don’t know what’s included in that definition (note: location would be included).

FISA and the Space-Time Continuum

This post talks about how NSA uses its various authorities to get around geographical and time restrictions on its spying.

The Senate Intelligence Committee 702 Bill Is a Domestic Spying Bill

This is one of the most important posts on FISA I’ve ever written. It explains how in 2014, to close an intelligence gap, the NSA got an exception to the rule it has to detask from a facility as soon as it identifies Americans using the facility. The government uses it to collect on Tor and, probably VPN, data. Because the government can keep entirely domestic communications that the DIRNSA has deemed evidence of a crime, the exception means that 702 has become a domestic spying authority for use with a broad range of crimes, not to mention anything the Attorney General deems a threat to national security.

“Hype:” How FBI Decided Searching 702 Content Was the Least Intrusive Means

In a response to a rare good faith defense of FBI’s back door searches, I pointed out that the FBI is obliged to consider the least intrusive means of investigation. Yet, even while it admits that accessing content like that obtained via 702 is extremely intrusive, it nevertheless uses the technique routinely at the assessment level.

Other Key Posts Threads

10 Years of emptywheel: Key Non-Surveillance Posts 2008-2010

10 Years of emptywheel: Key Non-Surveillance Posts 2011-2012

10 Years of emptywheel: Key Non-Surveillance Posts 2013-2015

10 Years of emptywheel: Key Non-Surveillance Posts 2016-2017

10 Years of emptywheel: Jim’s Dimestore

How to Spy on Carter Page

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I have no personal knowledge of the circumstances surrounding the alleged wiretapping of Carter Page, aside from what WaPo and NYT have reported. But, in part because the release of the new, annual FISC report has created a lot of confusion, I wanted to talk about the legal authorities that might have been involved, as a way of demonstrating (my understanding, anyway, of) how FISA works.

FISC did not (necessarily) reject more individual orders last year

First, let’s talk about what the FISC report is. It is a new report, mandated by the USA Freedom Act. As the report itself notes, because it is new (a report covering the period after passage of USAF), it can’t be compared with past years. More importantly, because the FISA Court uses a different (and generally more informative) reporting approach, you cannot — as both privacy groups and journalists erroneously have — compare these numbers with the DOJ report that has been submitted for years (or even the I Con the Record report that ODNI has released since the Snowden leaks); that’s effectively an apples to grapefruit comparison. Those reports should be out this week, which (unless the executive changes its reporting method) will tell us how last year compared with previous years.

But comparing last year’s report to the report from the post-USAF part of 2015 doesn’t sustain a claim that last year had record rejections. If we were to annualize last year’s report (covering June to December 2015) showing 5 rejected 1805/1824 orders (those are the individual orders often called “traditional FISA”) across roughly 7 months, it is actually more (.71 rejected orders a month or .58% of all individual content applications) than the 8 rejected 1805/1824 orders last year (.67 rejected orders a month or .53% of all individual content applications). In 2016, the FISC also rejected an 1861 order (better known as Section 215), but we shouldn’t make too much of that either given that that authority changed significantly near the end of 2015, plus we don’t have this counting methodology for previous years (as an example, 2009 almost surely would have at least one partial rejection of an entire bulk order, when Reggie Walton refused production of Sprint records in the summertime).

Which is a long-winded way of saying we should not assume that the number of traditional content order rejections reflects the reports that FBI applied for orders on four Trump associates but got rejected (or maybe only got one approved for Page). As far as we can tell from this report, 2016 had a similar number of what FISC qualifies as rejections as 2015.

The non-approval of Section 702 certificates has no bearing on any Russian-related spying, which means Page would be subject to back door searches

Nor should my observation — that the FISC did not approve any certifications for 1881a (better known as Section 702, which covers both upstream and PRISM) reflect on any Carter Page surveillance. Given past practice when issues delayed approvals of certifications, it is all but certain FISC just extended the existing certifications approved in 2015 until the matters that resulted in an at least 2 month delay were resolved.

Moreover, the fact that the number of certificates (which is probably four) is redacted doesn’t mean anything either: it was redacted last year as well. That number would be interesting because it would permit us to track any expansions in the application of FISA 702 to new uses (perhaps to cover cybersecurity, or transnational crime, for example). But the number of certificates pertains to the number of people targeted only insofar as any additional certificates represent one more purpose to use Section 702 on.

In any case, Snowden documents, among other things, show that a “foreign government” certificate has long been among the existing certificates. So we should assume that the NSA has collected the conversations of known or suspected Russian spies located overseas conducted on PRISM providers; we should also assume that as a counterintelligence issue implicating domestic issues, these intercepts are routinely shared in raw form with FBI. Therefore, unless last year’s delay involved FBI’s back door searches, we should assume that when the FBI started focusing on Carter Page again last spring or summer, they would have routinely searched on his known email addresses and phone numbers in a federated search and found any PRISM communications collected. In the same back door search, they would have also found any conversations Page had with Russians targeted domestically, such as Sergey Kislyak.

The import of the breakdown between 1805 and 1824

Perhaps the most important granular detail in this report — one that has significant import for Carter Page — is the way the report breaks down authorizations for 1805 and 1824.

1805 covers electronic surveillance — so the intercept of data in motion. It might be used to collect phone calls and other telephony communication, as well as (perhaps?) email communication collected via upstream collection (that is, non-PRISM Internet communication that is not encrypted); it may well also cover prospective PRISM and other stored communication collection. 1824 covers “physical search,” which when it was instituted probably covered primarily the search of physical premises, like a house or storage unit. But it now also covers the search of stored communication, such as someone’s Gmail or Dropbox accounts. In addition, a physical search FISA order covers the search of hard drives on electronic devices.

As we can see for the first time with these reports, most individual orders cover both 1805 and 1824 (92% last year, 88% in 2015), but some will do just one or another. (I wonder if FBI sometimes gets one kind of order to acquire evidence to get the other kind?)

As filings in the Keith Gartenlaub case make clear, “physical search” conducted under a FISA order can be far more expansive than the already overly expansive searches of devices under a Article III warrant. Using a FISA 1824 order, FBI Agents snuck into Gartenlaub’s house and imaged the hard drives from a number of his devices, ostensibly looking for proof he was spying on Boeing for China. They found no evidence to support that. They did, however, find some 9-year old child pornography files, which the government then “refound” under a criminal search warrant and used to prosecute him. Among the things Gartenlaub is challenging on appeal is the breadth of that original FISA search.

Consider how this would work with Carter Page. The NYT story on the Page order makes it clear that FBI waited until Page had left the Trump campaign before it requested an order covering him.

The Foreign Intelligence Surveillance Court issued the warrant, the official said, after investigators determined that Mr. Page was no longer part of the Trump campaign, which began distancing itself from him in early August.

I suspect this is a very self-serving description on the part of FBI sources, particularly given reports that FISC refused orders on others. But regardless of whether FISC or the FBI was the entity showing discretion, let’s just assume that someone was distinguishing any communications Page may have had while he was formally tied to the campaign from those he had after — or before.

This is a critical distinction for stored communications because (as the Gartenlaub case makes clear) a search of a hard drive can provide evidence of completely unrelated crime that occurred nine years in the past; in Gartenlaub’s case, they reportedly used it to try to get him to spy on China and they likely would do the equivalent for Page if they found anything. For Page, a search of his devices or stored emails in September 2016 would include emails from during his service on Trump’s campaign, as well as emails between the time Page was interviewed by FBI on suspicion of being recruited by Victor Podobnyy and the time he started on the campaign, as well as communications going back well before that. So if FISC (or, more generously, the FBI) were trying to exclude materials from during the campaign, that might involve restrictions built into the request or the final order

The report covering 2016 for the first time distinguishes between orders FISC modifies (FISC interprets this term more broadly than DOJ has in its reports) and orders FISC partly denies. FISC will modify an order to, among other things,

(1) impos[e] a new reporting requirement or modifying one proposed by the government;

(2)  chang[e] the description or specification of a targeted person, of a facility to be subjected to electronic surveillance or of property to be searched;

(3)  modify[] the minimization procedures proposed by the government; or

(4)  shorten[] the duration of some or all of the authorities requested

Using Page as an example, if the FISC were permitting FBI to obtain communications from before the time Page joined the campaign but not during it, it might modify an order to require additional minimization procedures to ensure that none of those campaign communications were viewed by the FBI.

The FISC report explains that the court will partly deny orders and “by approving some targets, some facilities, places, premises, property or specific selection terms, and/or some forms of collection, but not others.” Again, using Page as an example, if the court wanted to really protect the election related communications, it might permit a search of Page’s homes and offices under 1824, but not his hard drives, making any historic searches impossible.

There’s still no public explanation of how Section 704/Section 705b work, which would impact Page

Finally, the surveillance of Carter Page implicates an issue that has been widely discussed during and since passage of the FISA Amendments Act in 2008, but not in a way that fully supports a democratic debate: how NSA spies on Americans overseas.

Obviously, the FBI would want to spy on Page both while he was in the US, but especially when he was traveling abroad, most notably on his frequent trips to Russia.

The FISA Amendments Act for the first time required the NSA to obtain FISC approval before doing that. As I explain in this post, for years, public debate has claimed that was done under Section 703 (1881b in this report). But abundant evidence shows it is all done under 704 (1881c in this report). The biggest difference between the two, according to an internal NSA document, is the government doesn’t explain its methods in the latter case. With someone who would be spied on both in the US and overseas, that spying would be done under 705b (conducted under 1881d section b), which permits the AG to approve of spying overseas (effectively, 704 authority) for those already approved under a traditional order.

This matters in the context of spying on Carter Page for two reasons. First, as noted government doesn’t share details about how it spies overseas with the court. And some of the techniques we know NSA to use — such as XKeyscore searches drawing on bulk overseas collection — would seem to present additional privacy concerns on top of the domestic authorities. If the FBI (or more likely, the FISC) is going to try to bracket off any communications that occur during the period Page was associated with the campaign, that would have to be done for overseas surveillance as well, most critically, for Page’s July trip to Russia.

This report shows that 704, like the domestic authorities, also gets modified sometimes, so it may be that FISC did just that — permitted NSA to collect information covering that July meeting, but imposed some minimization procedures to protect the campaign.

But it’s unclear whether the court would have an opportunity to do so for 705b, which derives from Attorney General authorization, not court authorization. I assume that’s why 1881d was not included in this reporting requirement, but it seems adding 705b reporting to Title VII reauthorization this year would be a fairly minor change, but one that might reveal how often the government uses more powerful overseas spying techniques on Americans. It’s unclear to me, for example, whether any modifications or partial approvals the FISC made on a joint 1805/1824 order covering Page would translate into a 705b order, particularly if the modifications in question included additional reporting to the FISC.

Carter Page might one day be the first American to get review of his FISA dossier

All of which is why, no matter what you think of Carter Page’s alleged role in influencing the Trump campaign to favor Russia, I hope he one day gets to review his FISA dossier.

No criminal defendant has ever gotten a review of the FISA materials behind the spying, in spite of clear Congressional intent, when the law was passed in 1978, to allow that in certain cases. Because of the publicity surrounding this case, and the almost unprecedented leaking about FISA orders, Page stands a better chance than anyone else of getting such review (particularly if, as competing stories from CNN and Business Insider claim, the dossier formed a key, potentially uncorroborated part of the case against him). Whatever else happens with this case, I think Page should get that review.

The Shell Game the Government Played During Yahoo’s Protect America Act Challenge

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In his opinion finding Protect America Act constitutional, Judge Reggie Walton let his frustration with the way the government kept secretly changing the program at issue show.

For another, the government filed a classified appendix with the Court in December 2007, which contained the certifications and procedures underlying the directives, but the government then inexplicably modified and added to those certifications and procedures without appropriately informing the Court or supplementing the record in this matter until ordered to do so. These changes and missteps by the government have greatly delayed the resolution of its motion, and, among other things, required this Court to order additional briefing and consider additional statutory issues, such as whether the P AA authorizes the government to amend certifications after they are issued, and whether the government can rely on directives to Yahoo that were issued prior to the amendments.

The unsealed classified appendix released today (the earlier released documents are here) provides a lot more details on the shell game the government played during the Yahoo litigation, even with Walton. (It also shows how the government repeatedly asked the court to unseal documents so it could share them with Congressional Intelligence Committees or other providers it wanted to cooperate with PAA).

I mean, we expected the government to demand that Yahoo litigate blind, as it did in this February 26, 2008 brief arguing Yahoo shouldn’t be able to see any classified information as it tried to represent the interests of its American customers. (PDF 179)

In the approximately thirty years since the adoption of FISA, no court has held that disclosure of such documents is necessary to determine the legality of electronic surveillance and physical search. Similarly, there is of course a long history of ex parte and in camera proceedings before this Court. For almost three decades, this Court has determined, ex parte and in camera, the lawfulness of electronic surveillance and physical search under FISA. See 50 U.S.C. § 1805(a) (“the judge shall enter an ex parte order as requested or as modified approving the electronic surveillance” upon making certain findings); 50 U.S.C. § 1824(a) (same with respect to physical search).

Under the Protect America Act, then, the government has an unqualified right to have the Court review a classified submission ex parte and in camera which, of course, includes the unqualified right to keep that submission from being disclosed to any party in an adversarial proceeding before this Court.

But we shouldn’t expect a FISC judge presiding over a key constitutional challenge to have to beg to learn what he was really reviewing, as Walton had to do here. (PDF 159-160)

The Court is issuing this ex parte order to the Government requiring it to provide clarification concerning the impact on this case of various government filings that have been made to the FISC under separate docket.

[snip]

lt is HEREBY ORDERED that the government shall file a brief no later than February 20. 2008, addressing the following questions: 1. Whether the classified appendix that was provided to the Court in December 2007 constitutes the complete and up-to-date set of certifications and supporting documents (to include affidavits, procedures concerning the location of targets, and minimization procedures) that are applicable to the directives at issue in this proceeding. If the answer to this question is .. yes,'” the government” s brief may be filed ex parte. If the government chooses to serve Yahoo with a copy of the brief~ it shall serve a copy of this Order upon Yahoo as well.

2. If the answer to question number one is “no,” the Government shall state what additional documents it believes are currently in effect and applicable to the directives to Yahoo that are at issue in this proceeding. The government shall file copies of any such documents with the Court concurrent with filing its brief. The government shall serve copies of this Order, its brief, and any additional documents upon Yahoo, unless the government moves this Court for leave to file its submission ex parte, either in whole or in part. If the government files such a motion with the Court, it shall serve a copy of its motion upon Yahoo. The government shall also serve a copy of this Order upon Yahoo, unless the government establishes good cause for not doing so within the submission it seeks to file ex parte.

This is what elicited the government’s indignant brief about actually telling Yahoo what it was arguing about.

As a result of the government’s successful argument Yahoo had to argue blind, it did not learn — among other things — that CIA would get all the data Yahoo was turning over to the government, or that the government had basically totally restructured the program after the original expiration date of the program, additional issues on which Yahoo might have challenged the program.

Perhaps more interesting is that it wasn’t until Walton ruled on March 5 that he would not force the government to share any of these materials with Yahoo that the government finally provided the last relevant document to Judge Walton, the Special Procedures Governing Communications Metadata Analysis. (PDF 219)

On January 3, 2008, the Attorney General signed the “Department of Defense Supplemental Procedures Governing Communications Metadata Analysis,” which purported to supplement the DoD Procedures (“Supplement to DoD Procedures”), a copy of which is attached hereto as Exhibit A. The Supplement to DoD Procedures concerns the analysis of communications metadata that has already been lawfully acquired by DoD components, including the National Security Agency (NSA). Specifically, the Supplement to DoD Procedures clarifies that NSA may analyze communications metadata associated with U.S. persons and persons believed to be in the United States. The Supplement to DoD Procedures does not relate to the findings the Attorney General must make to authorize acquisition against a U.S. person overseas

This is particularly suspect given that one of the changes implemented after the original certification was to share data with CIA, something directly addressed in the memo justifying SPCMA to the Attorney General’s office (and a detail the government is still trying to officially hide).

Now, to be fair, in the original release, it was not clear that the government offered this much explanation for SPCMA, making it clear that the procedural change involved making American metadata visible. But the government very clearly suggested — falsely — that SPCMA had no Fourth Amendment implications because they didn’t make Americans overseas more likely to be targeted (which the government already knew was the key thrust of Yahoo’s challenge).

The opposite is true: by making US person metadata visible, it ensured the government would be more likely to focus on communications of those with whom Americans were communicating. These procedures — which were approved more than two months, one document dump, and one court order agreeing to keep everything secret from Yahoo earlier — were and remain the key to the Fourth Amendment exposure for Americans, as was argued just last year. And they weren’t given to even the judge in this case until he asked nicely a few times.

This was the basis for the dragnet that still exposes tens of thousands of Americans to warrantless surveillance. And it got briefed as an afterthought, well after the government could be sure it’d get no adversarial challenge.

The Government Spoliationing for a Fight with EFF

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On November 6, 2007, Judge Vaughn Walker issued a preservation order in EFF’s challenge to what we now know to be Stellar Wind, the Shubert case (which would be applied to the Jewel case after that). Nevertheless, in spite of that order, in 2009 the NSA started destroying evidence that it had collected data outside of the categories Judge Colleen Kollar-Kotelly authorized way back in 2004.

Also in 2009, NSA shifted records showing 3,000 people — which highly likely included CAIR’s staff and clients — had been dragnetted without the First Amendment review mandated by Section 215 (CAIR wasn’t a plaintiff on EFF’s earlier suits but they are on EFF’s phone dragnet suit, First Unitarian United). When they did, the government even appeared to consider the existing protection order in the EFF case; I have FOIAed their deliberations on that issue, but thus far have been stonewalled.

Finally, in 2011, NSA destroyed — on very little notice and without letting their own IG confirm the destruction of data that came in through NSA’s intake process — all of its Internet dragnet data.

In other words, on three known occasions, the NSA destroyed data covered by the protection order in Northern California, one of them even after admitting a protection order might cover the data in question. In two of those cases, we know the data either exceeded FISA’s orders or violated the law.

In fact, it wasn’t until 2014, when the government started asking Judge Reggie Walton for permission to destroy the phone dragnet data and EFF complained mightily, that NSA started complying with the earlier protection order. Later that same year, it finally asked FISC to keep the Protect America Act and FISA Amendments Act data also included under that order in its minimization procedures.

These posts provide more background on this issue: post, post, post, post.

In other words, on three different occasions (even ignoring the content collection), NSA destroyed data covered by the protection order. spoiling the evidence related to EFF’s lawsuits.

Which is why I find this claim — in the January 8 filing I’ve been waiting to read, but which was just posted on March 4 (that is, 5 days after the NSA would have otherwise had to destroy everything on February 29 under USA Freedom Act).

The Government remains concerned that in these cases, absent relief from district courts or explicit agreement from the plaintiffs, the destruction of the BR Metadata, even pursuant to FISC Order, could lead the plaintiffs to accuse the Government of spoliation. In Jewel, the plaintiffs have already moved for spoliation sanctions, including an adverse inference against the Government on the standing issue, based on the destruction of aged-off BR Metadata undertaken in accordance with FISC Orders. See Jewel Pls.’ Brief Re: the Government’s Non-compliance with the Court’s Evidence Preservation Orders, ECF No. 233.

Gosh, after destroying data on at least three different occasions (again, ignoring at least two years of content they destroyed), the government is worried that if it destroyed more it might get in trouble? Please!

Elsewhere, the strategy in this filing seems to be to expand the possible universe they’d have to set aside under the three cases (plus Klayman) for which there is a protection order as to make it virtually impossible to set it aside so as to destroy the rest. In addition, having let the time when they could have set aside such data easily pass because they were still permitted to access the data (say, back in 2014, when they got caught violating their protection order), they now claim that the closure of the dragnet makes such a search virtually impossible now.

It’s a nifty gimmick. They can’t find a way to destroy the data because they already destroyed even legally suspect data. And we learn about it only now, after the data would otherwise be destroyed, but now can’t be because they didn’t find some better resolution 2 years ago.

There’s More to the SPCMA Document

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Long time readers likely know I’ve been obsessed with the decision, which as far as we currently know started in 2007 after Alberto Gonzales and (since returned as FBI General Counsel) James Baker left DOJ, to let DOD chain through US person identifiers on metadata collected under EO 12333, what gets described as Special Procedures Governing Communications Metadata Analysis, or SPCMA. Here’s a post that describes it at more length.

We first learned about SPCMA in June 2013, when the Guardian published a 16-page document pertaining to the approval process that had been leaked by Edward Snowden. That document consisted of:

  • A ten page memo dated November 20, 2007, from Assistant Attorney General for National Security Ken Wainstein and Acting OLC Head Steve Bradbury, analyzing the legality of SPCMA and recommending approval of the change.
  • Appendix A, consisting of a cover sheet and a two-page approval memo signed by Robert Gates on October 19, 2007 and Michael Mukasey on January 3, 2008. As I noted in this post, the signature line had to be altered after the fact to indicate Mukasey was signing it, suggesting that then Acting Attorney General Peter Keisler had refused.
  • Appendix B, a September 28, 2006 memo written to Office of Intelligence and Policy head James Baker (this was the predecessor to the NSD at DOJ) by NSA’s General Counsel Vito Potenza requesting he approve what became SPCMA (Baker did not approve it).

Though it is not included in what Snowden leaked, the memo describes a third Appendix, Appendix C:

On July 20, 2004, the General Counsel of CIA wrote to the General Counsel of NSA and to the Counsel for Intelligence Policy asking that CIA receive from NSA United States communications metadata that NSA does not currently provide to CIA. The letter from CIA is attached at Tab C.

The government has not released an official version of the packet such as it got leaked by Snowden. However, it did release Appendix A, the approval memo, in Fall 2014 as part of the declassification of the Yahoo challenge to the Protect America Act. As I laid out in this post, the government not only got this document approved after the passage of PAA and while Yahoo was challenging orders received under it, but DOJ tried to hide it from FISC Judge Reggie Walton. They only handed it over — though without the context of the approval memo that made it clear it was about contact chaining including Americans — after he had scolded DOJ several times about not handing over all the documentation related to PAA.

DOJ did not submit the procedures to FISC in a February 20, 2008 collection of documents they submitted after being ordered to by Judge Walton after he caught them hiding other materials; they did not submit them until March 14, 2008.

So to sum up: We have 16 pages (the memo and two of three appendices) thanks to Edward Snowden, and we have an official copy of just the 2-page approval memo, released on the context of the Yahoo declassification.

I lay all this out because this entry, in the National Security Division Vaughn Index provided to ACLU last month, is undoubtedly this same memo.

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The date is the same, the description is almost the same. The only difference is that the withheld document has 20 pages, as compared to the 16 pages that Snowden gave us.

From that I conclude that the 2004 CIA memo is four pages long (three, plus a cover sheet). Note the date: squarely during the period when spooks were trying to put discontinued parts of Stellar Wind under some kind of legal authority.

Here’s how the NSA declared Exemptions 1 and 3 over this document.

56. NSD fully withheld Document 4 on its Vaughn index in part because the release of any portion of that document would disclose classified information about functions or activities of NSA. The document is a 20-page document dated 20 November 2007 and is described as NSD Legal Memo on Amending DoD Procedures and Accompanying Documentation.” This document. including its full title, was withheld in full under Exemption 1 and Exemption 3. I have reviewed the information withheld and determined that the information is currently and properly classified at the SECRET level in accordance with EO 13526 because the release of this information could reasonably be expected to cause serious damage to the national security. The information withheld pertains to intelligence activities, intelligence sources or methods, or cryptology. or the vulnerabilities or capabilities of systems or projects relating to the national security and therefore meets the criteria for classification set for in Sections 1.4(c) and 1.4(g) of EO 13526. The harm to national security of releasing any portion of this document and the reasons that no portion of this document can be released without disclosing classified information cannot be fully described on the public record. As a result my ex parte. in camera classified declaration more fully explains why this document was withheld in full.

57. The information withheld in N 0 Document 4 also relates to a “function of the National Security Agency” 50 U.S.C. § 3605. Indeed. this information relates to one of NSA’s primary functions, its SIGINT mission. Any disclosure of the withheld information would reveal NSA ·s capabilities and the tradecraft used to carry out this vital mission. Further. revealing these details would disclose “information with respect to lNSA ‘s] activities” in furtherance of its SIGINT mission. 50 U .. C. § 3605. Therefore. the information withheld is also protected from release by statute and is exempt from release based on FOIA Exemption 3. 5 U.S.C. § 552(b)(3).

The government asserted secrecy over the title of an already (and officially) released document in a recent EFF challenge, so this would not be the first time the government claimed the title of an already released document was secret to prevent nasty civil liberties groups from confirming that a FOIAed document was the same as a previously known one.

In NSD’s declaration, Bradley Weigmann indicated that “the vast majority” of the document pertained to attorney-client privilege.

NSD Document 17, the vast majority of a certain memorandum in NSD Document 4, and an email message in NSD Document 31 are protected by the attorney-client privilege. These documents discuss legal issues pertaining to an NSA program, set forth legal advice prepared by NSD lawyers for other attorneys to assist those other attorneys in representing the Government, and were sought by a decision-maker for the Government to obtain legal advice on questions of law and indeed reflect such advice. As such, NSD Document 17, the vast majority of a certain memorandum in NSD Document 4, and an email message in NSD Document 31 are protected from disclosure under the attorney-client privilege.

More interestingly, by referring to “an NSA program” it seemed to tie this document with this 2003 OIPR memo.

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And this November 12, 2013 email (written during a period in the aftermath of the Snowden releases as the government was trying to decide how to respond to various FOIAs as well as Yahoo’s request to unseal its challenge, not to mention after ACLU submitted this FOIA, which was actually submitted before the first Snowden leaks).

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Note, NSD won’t tell us what date in 2003 someone at OIPR (already headed by James Baker, one of the few people briefed on Stellar Wind) wrote about “an NSA program” that appears to be tied the chaining on US person metadata.

I have long believed one of the known but still as yet undescribed modifications to Stellar Wind (there is still at least one, though I believe there are two) enacted after the hospital confrontation in 2004 has to have been either at CIA or DOD, because it doesn’t appear in the unredacted NSA IG Report Snowden gave us. Here, we see CIA unsuccessfully asking for US person metadata at the time everyone was re-establishing Stellar Wind under more legal cover. Assuming NSA document 4 is this memo, the only thing the government is withholding that we haven’t seen yet is the CIA memo. I have a lot more suspicions about this program, too, that I still need to write up.

But I suspect they’re hiding these documents from us — and just as importantly, from the FISA Court — to prevent us from putting the various details of how US person metadata has been used over time. Or rather, to prevent us from laying out how the point of these foreign-targeted surveillance programs is to spy on Americans.

ACLU has already told the government they’re challenging the withholding of these documents.