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Amy Gleason’s Four — I Mean Five — Executive Orders

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In both her March 14 and March 19 declarations submitted in the CREW FOIA case [docket], purported DOGE Administrator Amy Gleason described that DOGE’s job was — in addition to the technology modernization function the original USDS was tasked with — to advance President Trump’s 18-month “DOGE agenda.”

19. As described in the USDS Order, USDS is charged with furthering President’s Trump DOGE agenda, by “modernizing Federal technology and software to maximize governmental efficiency and productivity.”

20. In furtherance of these efforts, the USDS Order directs the USDS Administrator to work with agency heads to “promote inter-operability between agency networks and systems, ensure data integrity, and facilitate responsible data collection and synchronization.”

21. In addition, the USDS Order charges the DOGE Service Temporary Organization with advancing President Trump’s 18 month “DOGE agenda,” as set forth in various Executive Orders. See ¶¶ 7, 24.

She describes the “DOGE agenda,” which she says stems from four Executive Orders and one Presidential Memorandum, this way:

24. The “DOGE agenda” includes the technology modernization efforts described in the USDS Order, as well as initiatives that are described in four separate Executive Orders and a presidential memorandum. These materials describe distinct—and limited—roles for USDS and agency heads and agency DOGE Teams. They include:

a. Executive Order 14,170, Reforming the Federal Hiring Process and Restoring Merit to Government Service (Jan. 20, 2025), which directs the USDS Administrator to consult with the Assistant to the President for Domestic Policy and the OMB Director on a federal hiring plan that focuses on hiring highly skilled Americans. The order charges the Assistant to the President for Domestic Policy with actually developing the plan and disseminating it to agency heads.

b. Presidential Memorandum, Hiring Freeze (Jan. 20, 2025), which instructs the USDS Administrator to consult with the OMB Director, who is responsible for submitting a “plan to reduce the size of the Federal Government’s workforce through efficiency improvements and attrition.” The USDS Administrator is also responsible for consulting with the OMB Director and the Treasury Secretary, who is responsible for determining when to lift the hiring freeze at the Internal Revenue Service.

c. Executive Order 14,210, Implementing the President’s “Department of Government Efficiency” Workforce Optimization (Feb. 11, 2025), which directs agency heads to reduce agency headcount and agency DOGE Team Leads to provide monthly reports to the USDS Administrator on agency hiring. The USDS Administrator is also directed to report to the President on agencies’ compliance with the order.

d. Executive Order 14,218, Ending Taxpayer Subsidization of Open Borders (Feb. 19, 2025), which requires the USDS Administrator to consult with the Assistant to the President for Domestic Policy and the OMB Director to identify sources of federal funding for illegal immigrants and collectively recommend agency actions to align spending with the purposes of the order and, where relevant, enhance eligibility verification systems.

e. Executive Order 14,219, Ensuring Lawful Governance and Implementing the President’s “Department of Government Efficiency” Deregulatory Initiative (Feb. 19, 2025), which requires agency heads, in consultation with their DOGE Teams Leads, to undertake deregulatory efforts.

f. Executive Order, 14,222, Implementing the President’s “Department of Government Efficiency” Cost Efficiency Initiative, (Feb. 26, 2025), which requires each agency head to make federal expenditures transparent and for DOGE Team Leads to report to the USDS Administrator on contracting and non-essential travel expenses.

25. Cumulatively, these orders and memorandum set forth the responsibilities assigned to USDS, the U.S. DOGE Service Temporary Organization, agency DOGE Teams, and agency DOGE Team Leads. As an entity created by Executive Order, USDS has no other independent sources of legal authority. [emphasis and links added]

There’s a lot that’s interesting about this — not least that she described the DOGE agenda consisted of four EOs but she cites five.

So much for government efficiency.

My guess is EO 14,218, which assigns DOGE the role of hunting down payments that go to undocumented people, was added as an afterthought. The EO does provide DOGE a role, but (unlike most of the others) does not address DOGE in the title.

What I’m particularly interested in, though, is that Gleason does not include EO 14,217, Commencing the Reduction of teh Federal Bureaucracy, the February 19 EO that ordered Institute for Peace, among other entities, to be shut down.

That’s not surprising. DOGE isn’t mentioned in the EO at all.

But that’s interesting because, according to USIP’s complaint, at a time when George Moose was still unquestionably President of the Institute for Peace, starting the day after the EO on February 20, DOGE representatives started nagging Moose about shutting down. First, Chris Young reached out. Then Moose met with DOGE representatives as President of USIP. Then Moose sent a letter to OMB, consistent with instructions in the EO. Then DOGE started conducting reconnaissance in advance of shutting USIP down.

39. On February 20, 2025, the day after the Executive Order was issued, Chris Young, a representative of the U.S. DOGE Service, contacted the Institute.

40. The Institute agreed to hold a virtual meeting with DOGE representatives on February 24, 2025. Ex. A, Declaration of George Moose; Ex. D, Declaration of George Foote.

41. In that February 24 meeting, the Institute president, Mr. Moose, and outside counsel for the Institute, George Foote, explained to DOGE representatives Cavanaugh, Burnham, and Altik that the Institute is an independent nonprofit corporation outside of the Executive branch. ; Ex. A, Declaration of George Moose; Ex. D, Declaration of George Foote.

42. On March 5, 2025, the Institute submitted a courtesy letter to OMB responding to the requests made in the Executive Order. The letter explained the Institute’s establishment by Congress and its status as an independent nonprofit that is not an Executive branch entity and reiterated the Institute’s willingness to maintain its longstanding cooperation with the Executive branch with regard to the foreign policy agenda of the President of the United States. Ex. D [sic], OMB Letter.

43. On or about March 8, 2025, Mr. Moose received word that DOGE was making inquiries into the status of the Institute’s security operations. These inquiries were intended to facilitate DOGE’s access to the Institute’s headquarters, just as DOGE had done with respect to numerous executive agencies. Ex. A, Declaration of George Moose.

44. On or about March 9, 2025, USIP outside counsel George Foote emailed Defendants Burnham, Altik, and Cavanaugh with information about the non-federal nature of the Institute’s security and the Institute’s ownership of its headquarters building. Mr. Foote again confirmed that the Institute is an independent nonprofit corporation and stated that unauthorized personnel would only be admitted with a valid warrant issued by a court. Ex. D., Declaration of George Foote. [emphasis, line, and links added]

It wasn’t until March 14 that the White House purported to fire all the board members so they could replace Moose.

46. On or about March 14, 2025, Trent Morse of the White House Presidential Personnel Office emailed certain members of the Board, including the Board Member Plaintiffs, claiming to inform them of their termination from the Board by President Trump. Those emails did not state any justification for the purported terminations. See Ex. D, Declaration of George Moose.

47. Shortly thereafter, on March 14, 2025, representatives from DOGE and Defendant Jackson appeared at USIP headquarters building requesting access. Because the Institute has administrative jurisdiction over the parcel of land on which its headquarters sits and the USIP building is owned by the Institute, those representatives were denied entry.

48. Later that same evening, Defendants Altik and Cavanaugh returned to the Institute’s headquarters accompanied by FBI Special Agents and presented Mr. Foote with a “resolution” signed by the three ex officio members of the Board purporting to remove Mr. Moose from his position as President of the Institute. Ex. F, Ex Officio Resolution. [emphasis and link added]

There’s nothing in the four — er, five — EOs that Gleason cites that authorizes DOGE to start shutting down agencies (and to the extent it calls for firing people at agencies, it puts agency heads in charge of that). And there’s nothing in the USIP- specific one that authorizes anyone outside the head of the affected entities — so, Moose, until March 14 if you believe he was lawfully fired — to do anything other than receive a report (as Russ Vought did on March 5) and discuss budgets with the head of the entity.

That means the actions DOGE took before Vought received the letter (marked with a line) — and probably the ones that happened at least until Trump claims to have replaced Moose — were not authorized under the scheme Gleason lays out.

She says that every DOGE team member at an agency reports to the agency head.

Every member of an agency’s DOGE Team is an employee of the agency or a detailee to the agency. The DOGE Team members – whether employees of the agency or detailed to the agency – thus report to the agency heads or their designees, not to me or anyone else at USDS.

So even if DOGE wants to claim that James Burnham and Jacob Altik and Nate Cavanaugh (all named defendants in the complaint) were reporting to a different agency — probably OMB, though ProPublica says they’re all lawyers locataed in the Executive Office of the Presidency — the EO shutting USIP down doesn’t even envision OMB to be involved before receiving that March 5 letter. After that, it only envisions OMB discussing budgets with the entity head. It would seem the things DOGE did before that were definitely unauthorized (and in any case not covered under the DOGE agenda), and most of the rest were too.

Judge Beryl Howell rejected USIP’s request for a Temporary Restraining Order yesterday in part because it has enough trappings of a federal entity to come under the recent DC Circuit Court opinion upholding Hampton Dellinger’s firing, and in part because the harms alleged in the complaint are contingent on the takeover being ruled unlawful. (Howell’s logic is quite similar to Richard Leon’s in the analogous US Africa Development Foundation lawsuit.)

Upon further consideration, the Institute may be deemed to sit outside of the executive branch, or the removal protections may be deemed appropriately enforceable within the Supreme Court’s jurisprudence, but plaintiffs did not demonstrate as much in this expedited posture. See generally, Pls.’ Mot. (not addressing Myers or Humphrey’s Executor).Plaintiffs also did not demonstrate irreparable harm because their alleged harm was dependent on their success on the merits. Plaintiffs cited as their irreparable harm their inability to carry out their statutory functions and the harm to the Institute based on defendants’ intent to reduce it to the “statutory minimums” and defendants’ alleged destruction of the Institute’s property. Compl. 1 ¶¶ 59-65. Those harms, however, are dependent on plaintiffs’ success on the merits. Plaintiffs’ counsel can only represent the Institute–and thus properly assert the harms of the Institute–to the extent that plaintiff Board members and former President of the Institute, George Moose, were wrongfully removed. Plaintiffs likewise only suffer harm in their official capacities–the capacities in which they pled, Compl. ¶¶ 7-11–if they must lawfully remain members of the Board.

This may have been an invitation from Howell for plaintiffs to craft their complaint better.

And I don’t understand why they didn’t include an Appointments Clause in their complaint. Because people who were presenting as DOGE took steps to start dismantling the Institute, in defiance of Congress’ apparent intent, while Moose remained in charge.

USIP is not the only instance where DOGE took action that appears not to be covered by these four — er, five — EOs. In DOGE’s assault on the US African Development Foundation (which Trump targeted under the same EO), some of the same characters started invading under false pretenses before its head, Ward Brehm, was allegedly replaced on February 24.

4. On February 21, Ethan Shaotran, Jacob Altik, and Nate Cavanaugh arrived at USADF. Shaotran and Cavanaugh introduced themselves as IT personnel from GSA. Altik stated that he was a lawyer from the White House Personnel Office. They explained that we needed to immediately sign a memorandum of understanding for their detail assignment.

5. Once the MOU was signed, Altik explained the true purpose of the meeting, which was to provide USADF leadership with DOGE’s interpretation of the “minimum presence and function” required by USADF’s statute. DOGE read the statute to mean: 1) only the USADF Board and President/CEO are statutorily required, 2) only one or two grants funded by private sector partnerships are required, and 3) all other personnel/employees therefore needed to be eliminated under the Executive Order.

6. Altik stated that his next step was to present a RIF plan (where all USADF staff would be fired) to the board for approval by Monday, February 24. Altik threatened that if the Board didn’t approve the plan, the Board would be dismissed. Both Mathieu Zahui and I tried to explain to Altik that the President’s Executive Order gave the agency 14 days to respond and that we intended to comply with the order.

7. Cavanaugh and Altik then demanded immediate access to USADF systems including financial records and payment and human resources systems, which include staff job descriptions, personnel files, salaries, and organizational structure.

8. Mathieu Zahui outlined the administrative process—which includes security clearances—required to access sensitive data and personally identifiable information from the Agency’s systems. He provided forms for the software engineers to complete to begin background checks.

9. Cavanaugh requested waivers on the clearance process from the USADF board. Altik demanded contact information for all board members and further stated that if the Board was unable to provide immediate clearance to access USADF systems, that he would issue a notice of dismissal to all board members the same day.

[snip]

12. That same day, February 21, after learning that the DOGE team had secured the memorandum of understanding under false pretenses—stating that they would modernize our computer systems but then attempting to shut down USADF— our General Counsel withdrew the MOU.

13. On February 24, Ward Brehm informed USADF that he had received an email from Trent Morse notifying Brehm that he had been dismissed as a board member of USADF. The email was very brief and did not specify any reasons for the dismissal.

There are other instances, though these two are notable because representatives of DOGE started dismantling two entities before they were decapitated, meaning they couldn’t have been reporting to the entities themselves.

Admittedly, Amy Gleason’s declarations are meant to serve the limited purpose of evading FOIA. As I’ve discussed, her declarations conflict with another document sworn by her claiming to be detailed to HHS. Judges are actively scoffing at these conflicts, so it’s not like we should trust her CREW declarations either.

But until they declare Gleason’s latest to be inoperative, they would seem to lock the government into a statutory arrangement in other cases.

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The Error that Betrays Insufficient Attention to the Obstruction Standard in the January 6 Eastman Filing

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There’s a telling error in the January 6 Committee’s filing aiming to overcome John Eastman’s claims his emails are covered by Attorney-Client privilege. In the section asserting that Trump had probably violated 118 USC 1512(c)(2) — the same obstruction statute used to charge over 200 of the other January 6 defendants — the filing asserts that six judges “to date” have “refused to dismiss charges against defendants under the section.”

That number is incorrect. As of March 2, at least ten judges had upheld DOJ’s application of 18 USC 1512(c)(2), and a few more have as much as said they would.

  1. Dabney Friedrich, December 10, 2021, Sandlin*
  2. Amit Mehta, December 20, 2021, Caldwell*
  3. James Boasberg, December 21, 2021, Mostofsky
  4. Tim Kelly, December 28, 2021, Nordean*
  5. Randolph Moss, December 28, 2021, Montgomery
  6. Beryl Howell, January 21, 2022, DeCarlo
  7. John Bates, February 1, 2022, McHugh
  8. Colleen Kollar-Kotelly, February 9, 2022, Grider
  9. Richard Leon (by minute order), February 24, 2022, Costianes
  10. Christopher Cooper, February 25, 2022, Robertson

When I first made this observation, I thought I was being a bit churlish in making it. But on reflection (and after reading the quotes from lawyers in this Charlie Savage article), I think it’s an important point. All the more so given how TV lawyers have claimed that, because the January 6 Committee has claimed Trump could be charged with obstruction, then damnit DOJ should already have done so.

The fact that the Jan 6 Committee isn’t even aware of all the obstruction rulings suggests they’ve been insufficiently attentive to what the rulings actually say, aside from the baseline holding of all of them that the vote certification was an official proceeding.

While ten judges have upheld the application, there are some differences between these opinions, particularly with regards to their formulation of the corrupt mens rea required by the statute. The most important differences from my review (but I’m not a constitutional lawyer and so I should not be the one doing this analysis!!!!!), are:

  • Whether “corrupt” intent requires otherwise illegal action
  • Whether such corruption would be transitive (an attempt to get someone else to act improperly) or intransitive (whether it would require only corruption of oneself)

Dabney Friedrich argued (and I laid out briefly here) — and has repeatedly warned in pretrial hearings for Guy Reffitt — that as she understand this application it must involve otherwise illegal actions. Amit Mehta ruled (as I wrote up here) that, at least for the Oath Keepers, this corruption may be just intransitive.

On both these issues, the Jan 6 Committee’s argument is a bit muddled. Here’s how they argue that Trump’s actions (and, less aggressively, Eastman’s) demonstrate that corrupt intent.

The Electoral Count Act of 1887 provides for objections by House and Senate members, and a process to resolve such objections through votes in each separate chamber. 3 U.S.C. §§ 5, 6, 15. Nothing in the Twelfth Amendment or the Electoral Count Act provides a basis for the presiding officer of the Senate to unilaterally refuse to count electoral votes — for any reason. Any such effort by the presiding officer would violate hte law. This is exactly what the Vice President’s counsel explained at length to Plaintiff and President Trump before January 6. Plaintiff acknowledge that the Supreme Court would reject such an effort 9-0. And the Vice President made this crystal clear in writing on January 6: [1] any attempt by the Vice President to take the course of action the President insisted he take would have been illegal. 

Nevertheless, pursuant to the Plaintiff’s plan, the President repeatedly asked the Vice President to exercise unilateral authority illegally, as presiding officer of the Joint Session of Congress, to refuse to count electoral votes. See supra at 11-13. In service of this effort, he and Plaintiff met with the Vice President and his staff several times to advocate that he universally reject and refuse to count or prevent the counting of certified electoral votes, and both also engaged in a public campaign to pressure the Vice President. See supra at 3-17.

The President and Plaintiff also took steps to alter the certification of electors from various states.

[snip]

The evidence supports an inference that President Trump and members of his campaign knew he had not won enough legitimate state electoral votes to be declared the winner of the 2020 Presidential election during the January 6 Joint Session of Congress, but [2] the President nevertheless sought to use the Vice President to manipulate the results in his favor.

[snip]

[T]he President and the Plaintiff engaged in an extensive public and private campaign to convince the Vice President to reject certain Biden electors or delay the proceedings, without basis, so that the President and his associates would have additional time to manipulate the results. [3] Had this effort succeeded, the electoral count would have been obstructed, impeded, influenced, and (at the very least) delayed, all without any genuine legal justification and based on the false pretense that the election had been stolen. There is no genuine question that the President and Plaintiff attempted to accomplish this specific illegal result. [numbering and bold mine]

As I said, I think this is a bit of a muddle. For starters, the Jan 6 Committee is not arguing that the delay actually caused by Trump’s mob amounted to obstruction. Rather, they’re arguing (at [3]) that had Eastman’s efforts to get Pence to himself impose a delay would be obstruction.

They make that argument even though they have evidence to more closely align their argument to the fact pattern ten judges have already approved. The emails included with this filing show Pence Counsel Greg Jacob twice accusing Eastman of convincing Trump of a theory that Trump then shared with his followers, which in turn caused the riot.

[T]hanks to your bullshit, we are now under siege.

[snip]

[I]t was gravely, gravely irresponsible of you to entice the President of with an academic theory that had no legal viability, and that you well know we would lose before any judge who heard and decided the case. And if the courts declined to hear it, I suppose it could only be decided in the streets. The knowing amplification of that theory through numerous surrogates, whipping large numbers of people into a frenzy over something with no chance of ever attaining legal force through actual process of law, has led us to where we are.

That is, Jacob argued, in real time, that Eastman’s knowingly impossible theory, amplified by the President, caused the riot that ended up putting Pence’s life at risk and delaying the vote certification. But the Jan 6 Committee argues instead that the attempted persuasion of Pence the was the obstructive act.

Perhaps as a result, the agency (transitive versus intransitive) involved in this obstructive act is likewise muddled. In one place (at [1]), the Jan 6 Committee argues that the obstructive act was a failed attempt to persuade Pence to take an illegal action. I’m not sure any of the failed attempts to persuade people to do something illegal (to persuade Pence to do something he couldn’t do, to persuade members of Congress to challenge the vote with either good faith or cynical challenges, to persuade Jeffrey Clark to serve as Acting Attorney General) would sustain legal challenges.

If the Commander in Chief ordered his Vice President to take an illegal act, that would be a bit different, but that’s not what the Jan 6 Committee argues happened here.

Elsewhere, this filing (and other attempts to apply obstruction to Trump) point to Trump’s awareness (at [2]) that he lost the election, and so his attempts to win anyway exhibit an intransitive corrupt intent.

As Charlie Savage noted in his story and a thread on same, to some degree the Jan 6 Committee doesn’t need to do any better. They’re not indicting Trump, they’re just trying to get emails they will likely get via other means anyway (and as such, the inclusion of this argument is significantly PR).

But to the extent that this filing — and not, say, the opinion issued by Judge Mehta after he had approved obstruction, in which he both ruled it was plausible that Trump had conspired with two militias and, more importantly (and to me, at least, shockingly), said it was also plausible that Trump may be liable under an aid and abet standard — is being used as the model for applying obstruction to Trump, it is encouraging a lot of unicorn thinking and, more importantly, a lot of really sloppy thinking. There are so many ways to charge Trump with obstruction that don’t require an inquiry into his beliefs about losing the election, and those are the ones DOJ has laid a groundwork for.

Plus, there are a few more realities that TV lawyers who want to talk about obstruction should consider.

First, it is virtually guaranteed that Friedrich’s opinion — the one that holds that “corrupt” must involve otherwise illegal actions — will be the first one appealed. That’s because whatever happens with the Guy Reffitt trial this week and next, it’s likely it will be appealed. And Reffitt has been building in an appeal of Friedrich’s obstruction decision from the start. First trial, first appeal. So TV lawyers need to study up what she has said about otherwise illegal action and lay out some rebuttals if their theory of Trump’s liability involves mere persuasion.

Second, while ultimately all 22 judges are likely to weigh in on this obstruction application (and there are only two or three judges remaining who might conceivably rule differently than their colleagues), there are just a handful of judges who might face this obstruction application with Trump or a close associate like Roger Stone or Rudy Giuliani. Judge Mehta (by dint of presiding over the Oath Keeper cases) or Judge Kelly (by dint of ruling over the most important Proud Boy cases) might see charges against Roger Stone, Rudy Giuliani, or Alex Jones. Chief Judge Howell might take a higher profile case herself. Or she might give it to either Mehta (who is already presiding over closely related cases, including the January 6 lawsuits of Trump) or one of the two judges who has dealt with issues of Presidential accountability, either former OLC head Moss or Carl Nichols. Notably, Judge Nichols, who might also get related cases based on presiding over the Steve Bannon case, has not yet (as far as I’m aware) issued a ruling upholding 1512(c)(2); I imagine he would uphold it, but don’t know how his opinion might differ from his colleagues.

The application of 18 USC 1512(c)(2) to January 6 is not, as the TV lawyers only now discovering it, an abstract concept. It is something that has been heavily litigated already. There are eight substantive opinions out there, with some nuances between them. The universe of judges who might preside over a Trump case is likewise finite and with the notable exception of Judge Nichols, the two groups largely overlap.

So if TV lawyers with time on their hands want to understand how obstruction would apply to Trump, it’d do well — and it is long overdue — to look at what the judges have actually said and how those opinions differ from the theory of liability being thrown around on TV.

I’m convinced not just that Trump could be prosecuted for obstruction, but that DOJ has been working towards that for some time. But I’m not convinced the current January 6 Committee theory would survive.

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The Odd Projection by the Steele Dossier’s Claimed Alfa Bank Source

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Way back in March 2017, I noted that there was a clear feedback loop behind the Steele dossier. As part of that post, I noted how weird the single report on Alfa Bank in the dossier was. Rather than writing damning information about Trump — which was the entire point of the dossier — it instead described the relationship between Putin and a guy named Oleg Govorun, who the dossier claimed worked for Alfa in the 1990s (that date was wrong but not the affiliation).

Consider report 112, dated September 14. It pertains to “Kremlin-Alpha Group Cooperation.” It doesn’t have much point in a dossier aiming to hurt Trump. None of his associates nor the Russian DNC hack are mentioned. It does suggest that that Alfa Group had a “bag carrier … to deliver large amounts of illicit cash to” Putin when he was Deputy Mayor of St. Petersburg, though describes the current relationship as “both carrot and stick,” relying in part on kompromat pertaining to Putin’s activities while Deputy Mayor. It makes no allegations of current bribery, though says mutual leverage helps Putin “do his political bidding.”

As I said, there’s no point to have that Alfa Bank passage in a dossier on Trump. But it does serve, in its disclosure, to add a data point (albeit not a very interesting one) to the Alfa Server story that (we now know) FBI was already reviewing but which hadn’t been pitched to the press yet. In Corn’s piece, he mentions the Alfa Bank story but not the report on Putin’s ties to it. It may be in there because someone — perhaps already in possession of the Alfa Bank allegations — asked Steele to lay out more about Alfa’s ties with Putin.

Here’s one reason that’s interesting, though. Even aside from all the other reasons the Alfa story is dodgy, it was deliberately packaged for press consumption. Rather than the at least 19 servers that Trump’s spam email was pinging, it revealed just two: Alfa Bank and Spectrum Health (the latter of which got spun, anachronistically, as a DeVos organization that thus had to be tight with Trump). Which is to say, the Alfa story was dodgy and packaged by yet unknown people.

Even though the report didn’t say anything really damning about current Alfa bank personnel, the oligarchs who own the bank have nevertheless engaged in protracted lawfare that seems set on ruining those behind the dossier. As part of the lawsuit against Fusion GPS, the Alfa oligarchs recently submitted declarations from the presumed sources of Igor Danchenko, Steele’s primary subsource. (And yes, two of these declarations claim to be Subsource 4, in both English and Russian.)

Subsource 1: Sergey Vladimirovich Abyshev

Subsource 2: Ivan Mikhailovich Vorontsov

Subsource 3: Olga Aleksandrovna Galkina

Subsource 4: Alexey Sergeyevich Dundich

Subsource 4: Ivan Ivanovich Kurilla

Subsource 5: Lyudmila Nikolayevna Podobedova

With the exception of Galkina, all of these purported subsources state that they have not read the dossier except for the Alfa Bank report, and then assert that they were not a source for the dossier. For example, this is how Dundich disclaimed being a source for the dossier as a whole, which he is sure is low-quality, while admitting he only read one report from it.

I am aware of the Steele Dossier (“Dossier”), but I have never read it save for Company Intelligence Report 112 (“CIR 112”).

[snip]

In contrast to what Mr. Danchenko told U.S. authorities, I was not a “source” of information for the Dossier. I never gave Mr. Danchenko (or anyone else) any information associated with the contents of the Dossier, including CIR 112, Mr. Fridman, Mr. Aven, Mr. Khan, or Alfa. I believe that Mr. Danchenko framed me as Sub-Source 4 to add credibility to his low-quality work, which is not based on real information or in-depth analysis.

Even Galkina, who stated that she had read the dossier when it was published by BuzzFeed, issues a non-denial denial, stating only that when she traveled to the US in 2016 she and Danchenko did not discuss anything about the dossier (the FBI interviewed her in August 2017, which she doesn’t mention here, and she does travel to the States, so she’d be at risk of prosecution if she said anything conflicting with her prior statements or material known to have been obtained from her via FISA 702).

Mr. Danchenko and I met once in 2016. In connection with my job at Servers.com, I traveled to the United States in the spring of 2016 to participate in the Game Developers Conference event and investigate the prospects of running a public relations campaign for the company in the United States. I asked Mr. Danchenko to assist those efforts, and he introduced me to a third party, Charles Dolan, whom he thought could help. Mr. Danchenko and I did not discuss anything related to the Dossier or its contents during this meeting.

But she doesn’t describe her communications with Danchenko via phone and text, which is how Danchenko said he got some of the most important stories sourced to her. And a later denial in her declaration seems to be a (poorly translated) denial limited to providing information specific to the Alfa Bank materials, not a denial of providing other information in it.

I did not provide Mr. Danchenko (or anyone else) with any information mentioned in the Dossier and that was connected to Mr. Fridman, Mr. Aven, Mr. Khan, or Alfa. I believe that Mr. Danchenko identified me as Sub-Source 3 to create more authoritativeness for his work.

In short, none of these declarations could be denials they provided Danchenko information in the dossier, because the one person who has actually read it doesn’t deny she did provide information (that said, her information was some of the most likely to be deliberate disinformation).

These declarations, then, don’t do what a filing attempting to use them to force Danchenko to set for a deposition claims they do, making general denials of being a source for the dossier.

Even more importantly, Mr. Danchenko’s claimed sub-sources have now denied, under penalty of perjury, providing Mr. Danchenko with information related to the contents of the dossier generally or with respect to CIR 112 and Plaintiffs specifically.7

Galkina’s the only one who’d be able to make such a denial, and she doesn’t do so in her declaration.

But I find Abyshev’s denials of interest for other reasons. He admits that he and Vorontsov met with Danchenko on June 15, 2016 and claims that Danchenko got very drunk (earlier he claimed that Danchenko had a drinking problem for a year or two after the compilation of the dossier).

I met with Mr. Danchenko once in 2016, the year that, as I understand, the Dossier was prepared. On June 15, 2016, Mr. Danchenko, Ivan Vorontsov, and I met in Moscow. I recall that Mr. Danchenko appeared very intoxicated and was not able to maintain a conversation. During the meeting, I spoke with Mr. Vorontsov about investments and finance. I do not recall any conversation related to the contents of the Dossier, including allegations related to CIR 112, Mr. Fridman, Mr. Aven, Mr. Khan, or Alfa. This was my last meeting with Mr. Danchenko.

He further admits that Danchenko raised Alfa on a phone call with him at some time that year, but claims he told Danchenko the subject was inappropriate and he should go find out the answers to the question himself.

On one occasion, during a phone call in 2016, Mr. Danchenko asked me how close Mr. Fridman is to President Putin and whether Mr. Fridman had met with President Putin in 2016. I did not respond to Mr. Danchenko’s questions. Instead, I made it clear that the questions were inappropriate and that Mr. Danchenko should seek out answers to them himself.

This denial comes on top of Abyshev’s more general denial about being a source for the report in question.

Contrary to what Mr. Danchenko told U.S. authorities, I was not a “source” of the Dossier. I never provided Mr. Danchenko (or anyone else) with any information related to the contents of the Dossier, including CIR 112, Mr. Fridman, Mr. Aven, Mr. Khan, or Alfa.

On this point, Abyshev’s denial is the only one that is really pertinent, because he’s the only one that Danchenko mentioned in his FBI interview in conjunction with this report (the FBI interviewed Danchenko two more times after this, but those interviews must not be helpful for Trump, because Republicans have never demanded those reports be declassified).

While Danchenko seems to suggest that Source 1, Abyshev, was involved in this story, he doesn’t actually say that. Instead, he explained that he had been working on this story for ten years and that Source 1 had provided him other information on corruption unrelated to Alfa.

That’s interesting, not least because Vorontsov actually said that if you wanted information about the oligarchs running Alfa, you’d look outside of Russia (probably London).

I do not believe that Mr. Danchenko asked anyone inside Russia about Mr. Fridman, Mr. Aven, or Mr. Khan. If Mr. Danchenko were interested in those individuals, he would have sought information from people living outside Russia who would have greater knowledge of Mr. Fridman, Mr. Aven, and Mr. Khan.

In Vorontsov’s opinion, this is the part of the dossier for which Danchenko wouldn’t need a source in Russia.

Here’s where things get interesting. Like everyone save Galkina, Abyshev says the only part of the dossier he read was the Alfa Bank report.

I am aware of the so-called Steele Dossier (“Dossier”), but I have never read it save for the Russian translation of Company Intelligence Report 112 (“CIR 112”), which raises various allegations about Mikhail Fridman, Petr Aven, German Khan, and Alfa.

Having not read the dossier, however, Abyshev claims that Danchenko’s job was to substantiate stories his clients want him to tell.

My understanding of Mr. Danchenko’s information-gathering process is that he first receives a story from his clients that he then must substantiate in any manner possible

This actually conflicts with Danchenko’s FBI interview, at least part of which Abyshev claims to have read, in which he says he tried to find information on Paul Manafort but failed to find much.

More interesting still, Abyshev offers up this explanation for what Danchenko was doing.

I infer from my interactions with Mr. Danchenko, from that 2016 telephone conversation, and from the content of what was ultimately published in CIR 112, that Mr. Danchenko had a working theory regarding the relationship between Alfa and its shareholders on the one hand, and President Putin on the other, and that Mr. Danchenko was fishing for information that would fit that preconceived narrative.

I believe it is likely that someone ensured that CIR 112 was included in the Dossier in an effort to persuade U.S. authorities to sanction Mr. Fridman, Mr. Aven, Mr. Khan, and Alfa.

I find that interesting — first, because decades old allegations of corruption would not substantiate a sanctions designation. Abyshev’s claims make no sense given the content that ended up in the report.

More interesting still is how closely Abyshev’s claims match Petr Aven’s testimony to Mueller’s team about how Putin pressured him to try to set up a back channel with Trump’s team during the transition by warning that Alfa would be sanctioned in the aftermath of the 2016 election.

Aven told the Office that he is one of approximately 50 wealthy Russian businessmen who regularly meet with Putin in the Kremlin; these 50 men are often referred to as “oligarchs.”977 Aven told the Office that he met on a quarterly basis with Putin, including in the fourth quarter (Q4) of 2016, shortly after the U.S. presidential election.978 Aven said that he took these meetings seriously and understood that any suggestions or critiques that Putin made during these meetings were implicit directives, and that there would be consequences for A ven if he did not follow through.979 As was typical, the 2016 Q4 meeting with Putin was preceded by a preparatory meeting with Putin’s chief of staff, Anton Vaino.980

According to Aven, at his Q4 2016 one-on-one meeting with Putin,981 Putin raised the prospect that the United States would impose additional sanctions on Russian interests, including sanctions against Aven and/or Alfa-Bank.982 Putin suggested that Aven needed to take steps to protect himself and Alfa-Bank.983 Aven also testified that Putin spoke of the difficulty faced by the Russian government in getting in touch with the incoming Trump Administration.984 According to Aven, Putin indicated that he did not know with whom formally to speak and generally did not know the people around the President-Elect.985

Aven [grand jury redaction] told Putin he would take steps to protect himself and the Alfa-Bank shareholders from potential sanctions, and one of those steps would be to try to reach out to the incoming Administration to establish a line of communication.986

[snip]

In December 2016, weeks after the one-on-one meeting with Putin described in Volume I, Section IV.B.1.b, supra, Petr Aven attended what he described as a separate “all-hands” oligarch meeting between Putin and Russia’s most prominent businessmen. 1167 As in Aven’s one-on-one meeting, a main topic of discussion at the oligarch meeting in December 2016 was the prospect of forthcoming U.S. economic sanctions. 1168

After the December 2016 all-hands meeting, Aven tried to establish a connection to the Trump team. Aven instructed Richard Burt to make contact with the incoming Trump Administration. Burt was on the board of directors for LetterOne (L 1 ), another company headed by Aven, and had done work for Alfa-Bank. 1169 Burt had previously served as U.S. ambassador to Germany and Assistant Secretary of State for European and Canadian Affairs, and one of his primary roles with Alfa-Bank and Ll was to facilitate introductions to business contacts in the United States and other Western countries. 1170

I’ve always believed the Trump Tower server story to be an elaborate disinformation effort, which had the added benefit of drawing attention to Erik Prince but not the things that Prince was doing that were key to the Russian operation (his communications about which were done via garden variety encrypted apps). I likewise always believed that Aven’s testimony might explain why Russia would craft such disinformation: not only to distract from the things that Prince and others really were doing, but to present a way to recruit Alfa’s oligarchs more centrally into Russia’s efforts to push back on sanctions, as oligarchs who weren’t as western-focused had long been.

Here, a filing in a lawsuit attempting to make maximal advantage of whatever success Russia had feeding an old nemesis of theirs disinformation as part of the larger 2016 operation makes the same argument that (according to Aven’s own testimony) Putin made to Aven, only insinuating that the argument would have come from Danchenko, not a Russian disinformation source.

Abyshev is, in addition to Danchenko’s source on the pee tape (at that meeting where Abyshev says Danchenko was badly drunk), also someone Danchenko understood to have close ties to Russian intelligence who appears to have known of Danchenko’s tie to Steele.

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The Dragnet Donald Trump Will Wield Is Not Just the Section 215 One

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I’ve been eagerly anticipating the moment Rick Perlstein uses his historical work on Nixon to analyze Trump. Today, he doesn’t disappoint, calling Trump more paranoid than Nixon, warning of what Trump will do with the powerful surveillance machine laying ready for his use.

Revenge is a narcotic, and Trump of all people will be in need of a regular, ongoing fix. Ordering his people to abuse the surveillance state to harass and destroy his enemies will offer the quickest and most satisfying kick he can get. The tragedy, as James Madison could have told us, is that the good stuff is now lying around everywhere, just waiting for the next aspiring dictator to cop.

But along the way, Perlstein presents a bizarre picture of what happened to the Section 215 phone dragnet under Barack Obama.

That’s not to say that Obama hasn’t abused his powers: Just ask the journalists at the Associated Press whose phone records were subpoenaed by the Justice Department. But had he wanted to go further in spying on his enemies, there are few checks in place to stop him. In the very first ruling on the National Security Administration’s sweeping collection of “bulk metadata,” federal judge Richard Leon blasted the surveillance as downright Orwellian. “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary’ invasion than this collection and retention of personal data,” he ruled. “Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment.”

But the judge’s outrage did nothing to stop the surveillance: In 2015, an appeals court remanded the case back to district court, and the NSA’s massive surveillance apparatus—soon to be under the command of President Trump—remains fully operational. The potential of the system, as former NSA official William Binney has described it, is nothing short of “turnkey totalitarianism.”

There are several things wrong with this.

First, neither Richard Leon nor any other judge has reviewed the NSA’s “sweeping collection of ‘bulk metadata.'” What Leon reviewed — in Larry Klayman’s lawsuit challenging the collection of phone metadata authorized by Section 215 revealed by Edward Snowden — was just a small fraction of NSA’s dragnet. In 2013, the collection of phone metadata authorized by Section 215 collected domestic and international phone records from domestic producers, but even there, Verizon had found a way to exclude collection of its cell records.

But NSA collected phone records — indeed, many of the very same phone records, as they collected a great deal of international records — overseas as well. In addition, NSA collected a great deal of Internet metadata records, as well as financial and anything else records. Basically, anything the NSA can collect “overseas” (which is interpreted liberally) it does, and because of the way modern communications works, those records include a significant portion of the metadata of Americans’ everyday communications.

It is important for people to understand that the focus on Section 215 was an artificial creation, a limited hangout, an absolutely brilliant strategy (well done, Bob Litt, who has now moved off to retirement) to get activists to focus on one small part of the dragnet that had limitations anyway and NSA had already considered amending. It succeeded in pre-empting a discussion of just what the full dragnet entailed.

Assessments of whether Edward Snowden is a traitor or a saint always miss this, when they say they’d be happy if Snowden had just exposed the Section 215 program. Snowden didn’t want the focus to be on just that little corner of the dragnet. He wanted to expose the full dragnet, but Litt and others succeeded in pretending the Section 215 dragnet was the dragnet, and also pretending that Snowden’s other disclosures weren’t just as intrusive on Americans.

Anyway, another place where Perlstein is wrong is in suggesting there was just one Appeals Court decision. The far more important one is the authorized by Gerard Lynch in the Second Circuit, which ruled that Section 215 was not lawfully authorized. It was a far more modest decision, as it did not reach constitutional questions. But Lynch better understood that the principle involved more than phone records; what really scared him was the mixing of financial records with phone records, which is actually what the dragnet really is.

That ruling, on top of better understanding the import of dragnets, is important because it is one of the things that led to the passage of USA Freedom Act, a law that, contrary to Perlstein’s claim, did change the phone dragnet, both for good and ill.

The USA Freedom Act, by imposing limitations on how broadly dragnet orders (for communications but not for financial and other dragnets) can be targeted, adds a check at the beginning of the process. It means only people 2 degrees away from a terrorism suspect will be collected under this program (even while the NSA continues to collect in bulk under EO 12333). So the government will have in its possession far fewer phone records collected under Section 215 (but it will still suck in massive amounts of phone records via EO 12333, including massive amounts of Americans’ records).

All that said, Section 215 now draws from a larger collection of records. It now includes the Verizon cell records not included under the old Section 215 dragnet, as well as some universe of metadata records deemed to be fair game under a loose definition of “phone company.” At a minimum, it probably includes iMessage, WhatsApp, and Skype metadata, but I would bet the government is trying to get Signal and other messaging metadata (note, Signal metadata cannot be collected retroactively; it’s unclear whether it can be collected with standing daily prospective orders). This means the Section 215 collection will be more effective in finding all the people who are 2 degrees from a target (because it will include any communications that exist solely in Verizon cell or iMessage networks, as well as whatever other metadata they’re collecting). But it also means far more innocent people will be impacted.

To understand why that’s important, it’s important to understand what purpose all this metadata collection serves.

It was never the case that the collection of metadata, however intrusive, was the end goal of the process. Sure, identifying someone’s communications shows when you’ve been to an abortion clinic or when you’re conducting an affair.

But the dragnet (the one that includes limited Section 215 collection and EO 12333 collection limited only by technology, not law) actually serves two other primary purposes.

The first is to enable the creation of dossiers with the click of a few keys. Because the NSA is sitting on so much metadata — not just phone records, but Internet, financial, travel, location, and other data — it can put together a snapshot of your life as soon as they begin to correlate all the identifiers that make up your identity. One advantage of the new kind of collection under USAF, I suspect, is it will draw from the more certain correlations you give to your communications providers, rather than relying more heavily on algorithmic analysis of bulk data. Facebook knows with certainty what email address and phone number tie to your Facebook account, whereas the NSA’s algorithms only guess that with (this is an educated guess) ~95+% accuracy.

This creation of dossiers is the same kind of analysis Facebook does, but instead of selling you plane tickets the goal is government scrutiny of your life.

The Section 215 orders long included explicit permission to subject identifiers found via 2-degree collection to all the analytical tools of the NSA. That means, for any person — complicit or innocent — identified via Section 215, the NSA can start to glue together the pieces of dossier it already has in its possession. While not an exact analogue, you might think of collection under Section 215 as a nomination to be on the equivalent of J Edgar Hoover’s old subversives list. Only, poor J Edgar mostly kept his list on index cards. Now, the list of those the government wants to have a network analysis and dossier on is kept in massive server farms and compiled using supercomputers.

Note, the Section 215 collection is still limited to terrorism suspects — that was an important win in the USA Freedom fight — but the EO 12333 collection, with whatever limits on nominating US persons, is not. Plus, it will be trivial for Trump to expand the definition of terrorist; the groundwork is already being laid to do so with Black Lives Matter.

The other purpose of the dragnet is to identify which content the NSA will invest the time and energy into reading. Most content collected is not read in real time. But Americans’ communications with a terrorism suspect will probably be, because of the concern that those Americans might be plotting a domestic plot. The same is almost certainly true of, say, Chinese-Americans conversing with scientists in China, because of a concern they might be trading US secrets. Likewise it is almost certainly true of Iranian-Americans talking with government officials, because of a concern they might be dealing in nuclear dual use items. The choice to prioritize Americans makes sense from a national security perspective, but it also means certain kinds of people — Muslim immigrants, Chinese-Americans, Iranian-Americans — will be far more likely to have their communications read without a warrant than whitebread America, even if those whitebread Americans have ties to (say) NeoNazi groups.

Of course, none of this undermines Perlstein’s ultimate categorization, as voiced by Bill Binney, who created this system only to see the privacy protections he believed necessary get wiped away: the dragnet — both that authorized by USAF and that governed by EO 12333 — creates the structure for turnkey totalitarianism, especially as more and more data becomes available to NSA under EO 12333 collection rules.

But it is important to understand Obama’s history with this dragnet. Because while Obama did tweak the dragnet, two facts about it remain. First, while there are more protections built in on the domestic collection authorized by Section 215, that came with an expansion of the universe of people that will be affected by it, which must have the effect of “nominating” more people to be on this late day “Subversives” list.

Obama also, in PPD-28, “limited” bulk collection to a series of purposes. That sounds nice, but the purposes are so broad, they would permit bulk collection in any area of the world, and once you’ve collected in bulk, it is trivial to then call up that data under a more broad foreign intelligence purpose. In any case, Trump will almost certainly disavow PPD-28.

Which makes Perlstein’s larger point all the more sobering. J Edgar and Richard Nixon were out of control. But the dragnet Trump will inherit is far more powerful.

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Guy Who Worked at White House When It Self-Authorized Dragnet Thinks Dragnets Are Cool

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Eleven judges from the DC Circuit denied Larry Klayman’s request to overturn the stay that a panel put on Richard Leon’s injunction against the dragnet today.

Of those 11 judges, just one decided to weigh in on the legality of the dragnet Leon had ruled unconstitutional: Brett Kavanaugh. In doing so, he laid out a condensed version of the Special Needs search used by dragnet boosters.

I vote to deny plaintiffs’ emergency petition for rehearing en banc. I do so because, in my view, the Government’s metadata collection program is entirely consistent with the Fourth Amendment. Therefore, plaintiffs cannot show a likelihood of success on the merits of their claim, and this Court was right to stay the District Court’s injunction against the Government’s program.

[snip]

Even if the bulk collection of telephony metadata constitutes a search, cf. United States v. Jones, 132 S. Ct. 945, 954-57 (2012) (Sotomayor, J., concurring), the Fourth Amendment does not bar all searches and seizures. It bars only unreasonable searches and seizures. And the Government’s metadata collection program readily qualifies as reasonable under the Supreme Court’s case law. The Fourth Amendment allows governmental searches and seizures without individualized suspicion when the Government demonstrates a sufficient “special need” – that is, a need beyond the normal need for law enforcement – that outweighs the intrusion on individual liberty.

[snip]

The Government’s program for bulk collection of telephony metadata serves a critically important special need – preventing terrorist attacks on the United States. See THE 9/11 COMMISSION REPORT (2004). In my view, that critical national security need outweighs the impact on privacy occasioned by this program.

Kavanaugh, of course, served as a White House lawyer and as Staff Secretary during the period when George Bush kept self-authorizing such a dragnet. While there’s no reason to believe he was involved in the dubious theories used to justify Stellar Wind (which were largely a version of this Special Needs argument), he may well have been consulted — as he apparently was on detainee treatment, though he claimed not to have been during his confirmation. He may also have seen the paperwork authorizing the program.

No doubt Kavanaugh would espouse this view whether or not he had worked for a guy who might face real legal trouble if this theory didn’t hold sway. But as people cite from this language in the future, they should remember that of all the judges who reviewed this decision, only Kavanaugh had this kind of personal tie to the dragnet. And only Kavanaugh saw fit to weigh in.

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The Government’s Bad Faith Arguments Demanding a Dragnet Stay

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As expected, the government requested an immediate stay of Richard Leon’s decision yesterday to enjoin the dragnet from collecting JJ Little’s phone records.

Their argument is noteworthy for its stubbornness — reasserting many of the same arguments Leon just ruled against — and logical inconsistency. The brief claims, for example, that termination of the dragnet would cause the government irreparable harm, even while suggesting that it’s possible they’ve stopped collecting data from Verizon Business Network Services, which they’ve just claimed would cause irreparable harm.

But the brief also argues that the only way to comply with the injunction is to shut down the entire dragnet.

As the Government Defendants have explained, however, the only practicable way for the NSA to comply with the Court’s preliminary injunction is immediately to cease all collection and queries of telephony metadata under the Section 215 program—that is, to shut the program down. That is so because the technical steps required in order to prevent the further collection of and to segregate the metadata associated with particular persons’ calls would take the NSA months to complete. Gov’t Defs.’ Opp. to Pls.’ Renewed Mot. for a Prelim. Inj. (ECF No. 150) (“Gov’t PI Opp.”) at 41-44, citing Potter Decl. (Gov’t PI Opp. Exh. 4) ¶¶ 20-27.

That’s not actually what the Potter declaration the discussion cites to says. Potter says there is a way to make Little’s records inaccessible — though it claims implausibly that it would take two weeks to accomplish.

With respect to a requirement that the NSA cease analytic access to any records about plaintiffs’ calls that may already have been collected under the Program, NSA has developed a process that can be used to prevent analytic access to metadata containing specified identifiers. This capability prevents the use of particular identifiers to conduct queries, and prevents analysts from accessing records containing those identifiers even if responsive to queries using different identifiers. NSA technical personnel estimate that eliminating analytic access to metadata associated with plaintiffs’ calls could be completed within approximately 2 weeks after receipt of the plaintiffs’ telephone numbers and the time-frames during which they were used.

This is the defeat list process I’ve discussed repeatedly, by which high volume numbers (like Verizon’s voice mail number and pizza joints) and other sensitive numbers (likely including Congress’ official numbers as well as informants) are made inaccessible to querying.

Consider me skeptical that it really takes 2 weeks to put something on a defeat list, as not doing so makes queries unusable. If it took 2 weeks, then the dragnet would frequently return crap for 2 weeks as techs tried to stay ahead of the defeat list numbers.

There’s one more thing that yesterday’s brief and the underlying declaration make clear though: The government is collecting records off telecom backbones, not off any billing system (contrary to what some reports still claim).

That’s true because the only way that the government wouldn’t be sure that Little’s records were collected under an order to VBNS is if they weren’t getting actual subscribers information. Moreover, Little’s records still show up on AT&T’s compliance, too (anytime his calls transit their backbone, not to mention any time he calls someone who uses AT&T).

That, of course, means that Larry Klayman and everyone else in the United States has standing if the Fourth Amendment injury comes with collection — because everyone’s records transit the major telecom backbones of the country. But the government has been claiming all this time they can’t be sure that’s the case.

The government will get their stay, and they will moot this decision (if not overturn it) at the end of the month. But not before engaging in some serious bad faith in claims to the court.

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Richard Leon Halts the Dragnet for One Plaintiff

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Judge Richard Leon has just issued an injunction on the NSA’s collection of the phone metadata of J.J. Little and his lawfirm. Little got added as a plaintiff to Larry Klayman’s suit (in which Leon earlier found the program unconstitutional but stayed his own injunction) so as to have a Verizon Business Services customer who could be certain his phone records had been collected.

The order will undoubtedly set off a bit of a scramble, not because pulling Little’s phone records really presents any difficulty for the NSA (they already defeat list so many records it’s clear they have the ability to at least make those records inaccessible to a search, though they don’t want to explain the full application of that process; hopefully this ruling will lead to more candor on this point). Rather, the NSA will want to ensure this program has constitutional sanction because it also collects so many other records of Americans (in his book, for example, Charlie Savage confirmed my earlier analysis that the Internet dragnet moved, in part, overseas rather than being shut down). And the DC Circuit is likely to respond to quickly override Leon.

That said, Leon’s order is most interesting for its analysis of the government’s claim it can carry out this program because of a Special Need. In it, he repeats efficacy arguments he made in his earlier ruling: rather than present any new evidence that the program has been useful, it has instead just said the threat environment requires it. But he also notes that this special need, unlike that of, say, a TSA check, does not have a deterrence effect. That’s interesting because the government’s own secrecy about how many calls are collected would make any deterrence uncertain (indeed, terrorists might be expected to move communications to the Internet, believing falsely that attracts less attention).

As I said, the DC Circuit is likely to overturn this. But it will give the government a few days of headaches until that point.

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Delusional DOJ Claims Documents Declassified, Released Under FOIA Not Declassified, Not Authentic

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Back in March, NYT’s Charlie Savage sued to get the NSA to respond to a FOIA request asking for “copies of — and declassification review of, as necessary” a bunch of things, including IG reports on “bulk phone records collection activities under Section 215 of the PATRIOT Act.”

In late August, they delivered an installment of their response to that suit to him including a series of IG Reports on the 215 program. Among other things, the FOIA response included an August 2, 2010 letter to FISC Judge John Bates referring to a compliance violation in Docket BR 10-10 (the order is dated February 26, 2010). In referring to the caption of that docket (and the caption redactions in other dockets are consistent in size), it named Verizon Wireless.

As I pointed out at the time, this provides Larry Klayman and other Verizon Wireless subscribers challenging the phone dragnet basis to establish standing to sue. While in the Klayman suit, Judge Richard Leon invited Klayman just to add a plaintiff who subscribed to Verizon Business Services, in Northern CA, EFF requested the 9th Circuit take judicial notice of the document.

So now DOJ has gone a bit batshit. (Josh Gerstein first reported on this here.) It mocks that EFF head Cindy Cohn “apparently believes” it fair to conclude Verizon Wireless took part in the phone dragnet because of a reference to “a company name that includes the term ‘Verizon Wireless’ in the caption of a purported FISC filing” that happens to govern the entire phone dragnet. It suggests the accuracy of the document DOJ gave to Savage can be reasonably questioned, apparently disputing its own FOIA response to Savage. And it bitches that EFF “does not contend that this document was declassified,” even though it was given to Savage pursuant to his request for “declassification review [] as necessary.”

In short, in an effort to argue the document doesn’t say what it says (which may, I admit, not mean what it says, but such is the wackiness of the secret FISA Court and the secret phone dragnet), DOJ is saying that DOJ didn’t provide Charlie Savage authentic, declassified documents like he sued to get. DOJ uses words like “purported” to describe DOJ’s own FOIA response.

I mean, I’ll grant you, those of us outside DOJ often doubt the accuracy of their FOIA responses to us. But usually DOJ at least pretends they’re giving us authentic documents.

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DOJ Threatens to Invoke State Secrets Over Something Released in FOIA

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In a hearing today, Judge Richard Leon said that Larry Klayman could pursue his dragnet challenge by adding a plaintiff who did business with Verizon Business Services. But as part of Klayman’s effort, he noted — weakly — that evidence got released showing Verizon Wireless was included in the dragnet. Klayman cited just the Charlie Savage article, not the document released under FOIA showing VZ Wireless on a FISC caption (though I presume his underlying 49 page exhibit includes the actual report — just not necessarily with the passage in question highlighted).

It was disclosed on August 12, 2015 by Charlie Savage of The New York Times that Verizon Wireless, as this Court had already ruled in its Order of December 16, 2013, at all material times was conducting and continuing to conduct unconstitutional and illegal dragnet “almost Orwellian” surveillance on Plaintiffs and millions of other American citizens. See Exhibit 1, which is a Government document evidencing this, incorporated herein by reference, and see Exhibit 2, the New York Times article.

Moreover, Klayman surely overstated what the inclusion of VZ Wireless in a phone dragnet Primary Order caption from 2010 showed. Which probably explains why DOJ said “The government has not admitted in any way, shape, or form that Verizon Wireless participated” in the Section 215 phone dragnet, according to Devlin Barrett.

The point is, they should have to explain why it is that, according to a document they’ve released, VZ Wireless was targeted under the program. Perhaps we’ll get that in Northern California, where EFF very competently pointed to what evidence there was.

Which is why the government’s threat to invoke state secrets was so interesting.

The Court should avoid discovery or other proceedings that would unnecessarily implicate classified national-security information, and the potential need to assert and resolve a claim of the state secrets privilege: Plaintiffs’ proposed amendments, in particular their new allegations regarding the asserted participation of Verizon Wireless in the Section 215 program, implicate matters of a classified nature. The Government has acknowledged that the program involves collection of data from multiple telecommunications service providers, and that VBNS (allegedly the Little Plaintiffs’ provider) was the recipient of a now-expired April 25, 2013, FISC Secondary Order. But otherwise the identities of the carriers participating in the program, now, or at any other time, remain classified for reasons of national security. See Klayman, 2015 WL 5058403, at *6 (Williams, S.J.).

At this time the Government Defendants do not believe that it would be necessary to assert the state secrets privilege to respond to a motion by Plaintiffs for expedited injunctive relief that is based on the allegations of the Little Plaintiffs, or even the proposed new allegations (and exhibit) regarding Verizon Wireless. Nor should it be necessary to permit discovery into matters that would risk or require the disclosure of classified national-security information and thus precipitate the need to assert the state secrets privilege. Nevertheless, if Plaintiffs were permitted to seek discovery on the question of whether Verizon Wireless is now or ever has been a participating provider in the Section 215 program, the discovery sought could call for the disclosure of classified national-security information, in which case the Government would have to consider whether to assert the state secrets privilege over that information.

As the Supreme Court has advised, the state secrets privilege “is not to be lightly invoked.” United States v. Reynolds, 345 U.S. 1, 7 (1953). “To invoke the . . . privilege, a formal claim of privilege must be lodged by the head of the department which has control over the matter after actual personal consideration by that officer.” Id. at 7-8. To defend an assertion of the privilege in court also requires the personal approval of the Attorney General. Policies and Procedures Governing Invocation of the State Secrets Privilege at 1-3, http://www.justice.gov/opa/documents/state-secret-privileges.pdf. The Government should not be forced to make so important a decision as whether or not to assert the state secrets privilege in circumstances where the challenged program is winding down and will end in a matter of weeks. Moreover, discovery into national-security information should be unnecessary to the extent the standing of the newly added Little Plaintiffs, and the appropriateness of injunctive relief, may be litigated without resort to such information.

If, however, discovery into national-security information is permitted, the Government must be allowed sufficient time to give the decision whether to assert the state secrets privilege the serious consideration it requires. And if a decision to assert the privilege is made, the Government must also be given adequate time to prepare the senior-level declarations and other materials needed to support the claim of privilege, to ensure that the national security interests at stake are appropriately protected. See, e.g., Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1077, 1090 (9th Cir. 2009).

I think it’s quite possible that VZW was not turning over phone records under the Section 215 program in 2010 (which is quite another matter than suggesting NSA was not obtaining a great deal, if not most, of VZW phone records generally). I believe it quite likely NSA obtained some VZW records under Section 215 during the 2010 period.

But I also believe explaining the distinctions between those issues would be very illuminating.

Meanwhile, the threat of stalling, with all the attendant rigamarole, served to scare Leon — he wants this to move quickly as badly as Klayman does. After all, Leon will have much less ability to issue a ruling that will stand after November 28, when the current dragnet dies.

We shall see what happens in CA when DOJ attempts to make a similar argument.

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Government Recently Released Information Proving Larry Klayman Has Standing

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As I noted, the DC Circuit Court reversed Judge Richard Leon’s injunction against the phone dragnet. The judges disagreed on whether Larry Klayman had standing — because he is a Verizon Wireless but not Verizon landline subscriber, which had been the only thing confirmed by the government. All agreed he had not shown he had the high certainty of standing required to uphold an injunction against the program. But the per curium opinion did agree that the case has not been mooted, because by immediately restarting the bulk program after the passage of USA F-ReDux, the government showed that the harm could recur.

That’s important, because information proving that Klayman does have standing has recently been released in an official (albeit probably inadvertent) release.

Part of the IG Reports on the phone dragnet Charlie Savage obtained by suing shows that — at least in 2010 — the Primary Order for the phone dragnet went to AT&T, Sprint, Verizon’s subsidiaries (the former MCI part of Verizon’s business, which I believe is its backbone), and “Cellco Partnership d/b/a Verizon Wireless.”

I’ll say more about what I think this really means in a later post — and why I think the suit against bulk surveillance needs to be, and can be, tweaked somewhat to ensure standing.

But for the moment, know that for at least one 90 day period in 2010, Verizon Wireless as well as Verizon’s landline was ordered to turn over phone records.

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