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Robert Mueller’s Claims to Be Ignorant about Geolocation Probably Bullshit

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As I laid out in this Guardian column on today’s House Judiciary Committee hearing, after citing Smith v. Maryland a bunch of times to justify getting all Americans’ phone records, FBI Director Robert Mueller went on to pretend not to know whether those records include geolocation.

New York Representative Jerry Nadler wasn’t convinced Mueller’s excuse was good enough. He noted that metadata includes so much more information than it did in 1979, and that that earlier ruling might not stand in this case. Utah’s Jason Chaffetz got much more specific about the difference between phones in 1979 and now: location.

Landlines include location information. But with cell phones, the same location information necessary to route a call effectively provides a rough idea of where a person is even as they move from place to place (map functions on smart phones, as well as a lot of applications, rely on this data). Thus, the geolocation available as part of cell phone metadata provides a much better idea of where a person goes and what they do than location data for a landline tied to a person’s address.

Chaffetz posed several questions that, he revealed, he had sent Mueller Wednesday so that he would be prepared to answer, starting with whether or not geolocation is part of this metadata collection. In spite of Chaffetz’s prior warning, Mueller said he did not know whether it was included.

Note that the order to Verizon the Guardian publishedspecifically includes routing information in its description of metadata, which gets to geolocation. It’s clear this collection includes geolocation.

Mueller was also unprepared to answer whether or not a different supreme court case from last year, US v Jones, which determined that installing a GPS tracking device on a suspect’s car constituted a search, meant that the geolocation provided by the GPS function on cell phones did not qualify as metadata. Mueller was also unprepared to answer whether tracking someone’s location by using their phone constituted metadata.

In fact, Mueller admitted his staffers had told him he’d be asked these questions – yet still hadn’t prepared. It seemed almost as if his inability to answer this question in public was intentional.

As I suggested, Mueller’s feigned ignorance was probably intentional.

Moreover, his professed ignorance about whether the phone records include location is probably bullshit. That’s true, as I noted, because the order in question includes routing information, which in the case of cell phones, includes tower location which is location.

And remember, according to Tom Coburn, the FBI Director’s role in approving this process is so central, Coburn was worried that legal challenges to Mueller’s two-year extension might put the entire dragnet program at risk. So it’s hard to believe all this time Mueller has been personally vouching for orders like the one to Verizon that ask explicitly for routing information without knowing he was asking for routing information.

Here’s the other reason I think Mueller is telling a least untruth that is too cute by half when he claims ignorance.

Shortly after the US v. Jones ruling, Ron Wyden asked Director of National Intelligence James Clapper to what degree Jones affected the intelligence community. He even invoked “secret law,” the way he always has done when referring to this dragnet program(s).

Wyden: Director Clapper, as you know the Supreme Court ruled last week that it was unconstitutional for federal agents to attach a GPS tracking device to an individual’s car and monitor their movements 24/7 without a warrant. Because the Chair was being very gracious, I want to do this briefly. Can you tell me as of now what you believe this means for the intelligence community, number 1, and 2, would you be willing to commit this morning to giving me an unclassified response with respect to what you believe the law authorizes. This goes to the point that you and I have talked, Sir, about in the past, the question of secret law, I strongly feel that the laws and their interpretations must be public. Read more →

Is Robert Mueller, a Purported Hero of the Hospital Confrontation, Responsible for Section 215 Use?

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On March 23, 2004 at noon, less than two weeks after the dramatic hospital confrontation and threats to quit reportedly got the Administration to agree to stop data mining Americans, FBI Director Robert Mueller had a meeting with Dick Cheney, at the Vice President’s request, in the Vice President’s office. In his notes, Mueller doesn’t describe what the VIce President wanted, nor am I aware that it has even been reported in the press.

The next day, the Chief Division Counsel of some Division of the FBI wrote a memo to the FBI General Counsel noting that FBI was using a “new standard” with Section 215 of the PATRIOT Act and indicating that a “recent decision” had been made to bypass the review of the Office of Intelligence Policy and Review on Section 215 applications.

In part, the apparent decision to bypass OIPR, which had rejected the premise of the previous Section 215 orders FBI had submitted in the past, reflected no more than a concerted effort on FBI’s part to make sure it could start using all the PATRIOT authorities it had been granted in 2001 in anticipation of renewal discussions that would take place the following year. Yet the timing of this change is particularly curious, given that we now know Section 215 has been used to collect data that could be used for data mining Americans, precisely the problem that had caused the hospital confrontation 12 days earlier.

At the very least, however, it shows that sometime around the same time as Jim Comey and others at DOJ tried to stop the data mining of Americans under NSA’s illegal program, FBI claimed to have eliminated one review step for Section 215 orders and changed the standard used for them. That reference notwithstanding, DOJ Inspector General at least reported that OIPR continued to have a role. (Note, the office that got cut out of the process, OIPR, is where one of the key whistleblowers on the illegal program, Thomas Tamm worked, though I have asked him if he knew whether they used Section 215 to accomplish the same program and he didn’t know anything about it.)

On May 21, 2004, just as the the confrontation was settling down, FBI got its first Section 215 order approved. MIRACLES! the memo subject line read. “We got our first business record order signed today. It only took two and a half years.”

Now, at least some of the people commenting publicly on the confirmation that Section 215 has been used to compile a database recording details on all calls Americans make say Section 215 has supported that purpose only since 2006. Dianne Feinstein, for example, says the practice has gone on for 7 years.

As far as I know, this is the exact three month renewal of what has been the case for the past seven years. This renewal is carried out by the FISA Court under the business records section of the Patriot Act. Therefore, it is lawful.

Seven years would put its start almost exactly at the March 9, 2006 renewal of the PATRIOT Act, which added new language on Section 215 in the wake of the December 15, 2005 exposure of Bush’s illegal wiretap program. In discussions of this collection program since last week, it has generally been accepted that’s when it all started.

Curiously (particularly given his insistence that PRISM only started in 2008, slides to the contrary notwithstanding), James Clapper made no claims about precisely when this practice started.

The Patriot Act was signed into law in October 2001 and included authority to compel production of business records and other tangible things relevant to an authorized national security investigation with the approval of the FISC. This provision has subsequently been reauthorized over the course of two Administrations – in 2006 and in 2011. It has been an important investigative tool that has been used over the course of two Administrations, with the authorization and oversight of the FISC and the Congress.

It is possible that this program was conducted under a different PATRIOT provision (such as the Pen Register ones) prior to 2006; in fact, Clapper never mentions the term “Section 215” in his purported clarification of the program.

Now, consider one more detail. In a statement before the 2009 debate on PATRIOT Act reauthorization focusing closely on Section 215, Russ Feingold suggested that the debate over reauthorization in 2005, which led to purported initial use of Section 215 to conduct this dragnet, had been stymied by classification of how the PATRIOT had been implemented.

I remain concerned that critical information about the implementation of the Patriot Act has not been made public – information that I believe would have a significant impact on the debate. During the debate on the Protect America Act and the FISA Amendments Acts in 2007 and 2008, critical legal and factual information remained unknown to the public and to most members of Congress – information that was certainly relevant to the debate and might even have made a difference in votes. And during the last Patriot Act reauthorization debate in 2005, a great deal of implementation information remained classified.

[snip]

But there also is information about the use of Section 215 orders that I believe Congress and the American people deserve to know. I do not underestimate the importance of protecting our national security secrets. But before we decide whether and in what form to extend these authorities, Congress and the American people deserve to know at least basic information about how they have been used. So I hope that the administration will consider seriously making public some additional basic information, particularly with respect to the use of Section 215 orders.

There can be no question that statutory changes to our surveillance laws are necessary. Since the Patriot Act was first passed in 2001, we have learned important lessons, and perhaps the most important of all is that Congress cannot grant the government overly broad authorities and just keep its fingers crossed that they won’t be misused, or interpreted by aggressive executive branch lawyers in as broad a way as possible. [my emphasis]

This suggests the plan to use Section 215 may have been explicit in those classified debates.

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Putin: You Show Me Yours and … I Might Show You Mine

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AG-meeting1-300x199It’s not until the 17th and 18th paragraph of this Moscow Times article on Russian Interior Minister Vladimir Alexandrovich Kolokoltsev’s discussion with Attorney General Eric Holder about sharing more law enforcement information that it reminds readers that just three days before the Boston Marathon attack, Russia and the US were exchanging blacklists of people prohibited from travel to their respective country.

The Interior Ministry won a court ruling to authorize Browder’s arrest and place him on an international arrest warrant shortly after the U.S. released its so-called Magnitsky list of 18 Russians banned from entry into the country. Among those on the list are Artyom Kuznetsov and Pavel Karpov, Interior Ministry investigators who put Magnitsky behind bars.

The blacklist, published April 12, provoked a storm of protest from Moscow and a tit-for-tat release of a blacklist of U.S. officials. But the Boston bombing occurred just three days later, causing the two sides to tone down their rhetoric and take a second look at relations.

The Russian blacklist not only includes torturers like John Yoo, but people involved in Viktor Bout’s prosecution.

And it makes no mention of the complaints that Russia has been slow to share information since.

Details on tensions surrounding Magnitsky come long after the details on information sharing in the article: Robert Mueller promises to open up some FBI files to the Russians in anticipation of the 2014 Winter Olympics, and we’ve exchanged 827 documents this year.

FBI director Robert Mueller promised Kolokoltsev in Washington late last week to open some FBI data to the Russians, saying, “Such resources could be useful to Russian law enforcement agencies in view of the Sochi Olympics,” the Interior Ministry said in a statement.

About 15,000 U.S. citizens could attend the Sochi Olympics, according to Mueller.

Mueller also thanked the Russian side for the help it provided in investigating the Boston Marathon bombing, which U.S. investigators believe was masterminded and carried out by brothers Tamerlan and Dzhokhar Tsarnaev, who have mixed Chechen-Dagestani origin.

[snip]

Kolokoltsev also met with U.S. Attorney General Eric Holder and suggested that the Interior Ministry sign a legal cooperation agreement with the U.S. Justice Department.

“Since the beginning of this year, we have exchanged 827 documents with U.S. law enforcement agencies,” Kolokoltsev told reporters, noting that the U.S. is one of top five countries with which Russia cooperates within the framework of the Interpol.

So if you’re planning on attending the Olympics in Russia next year, don’t piss off the FBI before then!

Then there’s the bit Russian Times doesn’t mention, which happens to be one of the very few things included in the US Department of Justice statement on this meeting. The US plans to share not just counterterrorism information, but also transnational crime organization.

They also discussed law enforcement cooperation between the two countries in areas including counterterrorism, transnational organized crime and child pornography.

Recall, Russian mobsters are among the four organizations the Obama Administration listed among the Transnational Criminal Organizations we would use terrorism-like tactics to hunt down; we’ve focused on Central Asian mobsters in our specific sanctions. It’s not clear that Russia has been particularly forthcoming with cooperation on this front in the past.

Let’s see whether this buzz about information sharing changes that.

The Laughable Currently Operative AP Pushback Story

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It has taken several days for the government — apparently, almost exclusively DOJ — to try to spin its secret seizure of AP call records. The new version of the government’s ever-evolving story is that the reason the AP story was so damaging was because it prevented CIA from using the mole to locate Ibrahim al-Asiri, AQAP’s bomb-maker.

Here’s how the guy who headed DOJ’s Office of Legal Policy until last year explained this on Friday.

About a year ago, someone within the government who had access to highly classified information about an intelligence operation in Yemen involving a double agent saw fit to talk about it with the Associated Press. When senior government officials learned that the Associated Press had this story and intended to publish it, those officials realized that the agent’s cover had been blown. Anxious for his safety, the officials prevailed on the AP to delay publication so that first the agent’s family and then the agent himself could be extracted to safety. The AP then published its story, which focused on thwarting a plot to use a new and improved underwear bomb to blow up an airplane bound for the United States.

What went completely without mention in the initial coverage was the fact that thwarting this plot was not the objective of the ongoing undercover operation. Its true objective was to gain enough intelligence to locate and neutralize the master bomb builder, Ibrahim Hassan al-Ashiri, who works with an Al-Qaeda affiliate, Al-Qaeda in the Arabian Peninsula (AQAP). Penetrating AQAP is incredibly difficult. This double agent provided a rare opportunity to gain critical, life-saving information. Whoever disclosed the information obtained by the AP had not only put the agent’s life and his family’s life in danger. He also killed a golden opportunity to save untold more lives that now remain at risk due to al-Ashiri remaining at large.

Here’s how three former high-ranking DOJ officials explained it in an op-ed today.

The United States and its allies were trying to locate a master bomb builder affiliated with Al Qaeda in the Arabian Peninsula, a group that was extremely difficult to penetrate. After considerable effort and danger, an agent was inserted inside the group. Although that agent succeeded in foiling one serious bombing plot against the United States, he was rendered ineffective once his existence was disclosed.

And here’s how Walter Pincus reported it today.

Whoever provided the initial leak to the Associated Press in April 2012 not only broke the law but caused the abrupt end to a secret, joint U.S./Saudi/British operation in Yemen that offered valuable intelligence against al-Qaeda in the Arabian Peninsula.

One goal was to get AQAP’s operational head, Fahd Mohammed Ahmed al-Quso. That happened one day before the AP story appeared.

A second goal was to find and possibly kill AQAP bombmaker Ibrahim Hassan al-Asiri, whose first underwear device almost killed Prince Mohammed bin Nayef, Saudi Arabia’s anti-terrorism chief.

[snip]

Hitting targets in the United States is one of AQAP’s goals. In association with Saudi intelligence, the CIA inserted a Saudi who convinced AQAP that he wanted to be a suicide bomber. Eventually he was outfitted with Asiri’s newest device, which he was to use on a U.S. aircraft. After the device was delivered to U.S. officials, someone or several people leaked the information to the AP. [my emphasis]

Now, Pincus’ story is generally balanced. Unlike the other two, he admits that Fahd al-Quso got killed while the AP held their story and that, in killing Quso, the government accomplished at least one objective of the mole’s mission and did so thanks to AP’s willingness to cede to government requests about this story. He also admits that before the AP ever came to the government with the story, the mole’s UndieBomb had already been delivered to the US.

That chronology is important. And it is one backed by the government’s official timeline (not to mention the CNN report that said the mole had turned over the bomb around April 20 and the report that Robert Mueller traveled to Yemen for an unscheduled 45 minute meeting on April 24). The day after the AP story, Jay Carney said that Obama had been informed about the plot in “early April.”

Q Do you expect that he’ll address at all — I know we got statements yesterday, but the Yemeni al Qaeda plot, do you think he will address that at all in his remarks today?

MR. CARNEY: I don’t expect him to address that issue in his remarks. I mean, I will say that he’s certainly pleased with the success of our intelligence and counterterrorism officials in foiling the attempt by al Qaeda to use this explosive device. It is indicative of the kind of work that our intelligence and counterterrorism services are performing regularly to counter the threat posed by al Qaeda in general, and AQAP in particular.

So he was regularly — as you know, he was made aware of this development in early April and he was regularly briefed on it by John Brennan. [my emphasis]

The NSC’s official statement on that day also said Obama had been informed of the plot in April.

So the government rolled up the plot in April — almost certainly by April 24 — and then the AP came to the CIA and White House with their story about a foiled plot on May 2.

It’s that timing that undermines the claim that the government still hoped to use the mole to get at Ibrahim al-Asiri. Because to maintain that claim, you’d have to explain how an AQAP operative who had been entrusted with the latest version of Ibrahim al-Asiri’s UndieBomb sometime in early April, had left (at least as far as Sanaa), had not apparently succeeded in his mission (which was, after all, meant to be a suicide bombing), could return to AQAP without the UndieBomb and infiltrate even further than he had the first time.

“Oh, hi, AQAP gatekeeper” — their story must imagine the mole saying as he returned to AQAP — “I’ve both failed in my mission and somehow lost the bomb you gave me, but based on that would you be willing to let me spend some quality time with even higher-ranking AQAP operatives?”

The government must believe AQAP has far worse counterintelligence than Asiri’s longevity would seem to suggest. Alternately, they’re just inventing stories right now to justify their seizure.

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Did AP Learn about Fake UndieBomb 2.0 because Real Marshals Deployed to Prevent It?

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In my next post, I’m going to revisit this post, where I showed 372 days ago that at least one or two of the major early sources for the most damning information on UndieBomb 2.0 came from non-US based sources.

But before that, check out this passage from the ABC story that first revealed UndieBomb 2.0 was an inside job.

The plot appeared timed to coincide with the first anniversary of Osama bin Laden’s death, but the bomber did not get as far as purchasing plane tickets or choosing a flight. As ABC News first reported last week, the plot led the U.S. to order scores of air marshals to Europe to protect U.S.-bound aircraft. Flights out of Gatwick Airport in England received 100 percent coverage, according to U.S. officials.

While I haven’t been able to find the reporting in question [update: see below], at least according to the article, ABC had been told the previous week — around the same time the AP first learned about the purported UndieBomb 2.0 plot — that there was a massive effort on the part of the US Air Marshals to cover a bunch of US-bound planes …

… that the Intelligence Community knew had no UndieBomb on board.

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The Global War on Wayward Knuckleheads

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103 minutes into todays Global Threat Hearing in the Senate Intelligence Committee, National Counterterrorism Center Director Matt Olsen got asked his first question, about what his agency is seeing as rising threats. As part of the discussion that ensued, he noted that homegrown Islamic terrorists continued to be a threat though, he admitted, such attacks would be “unsophisticated.”

He then admitted that those who get inspired by Al Qaeda propaganda are “wayward knuckleheads.”

The comment sure seems to confirm a key premise of Trevor Aaronson’s book, The Terror Factory. Our domestic war on terror — complete with FBI-concocted plots — really consists of getting wayward knuckleheads to respond to FBI incitment. “FBI’s trawling in Muslim communities has resulted largely in sting operations that target easily susceptible men on the margins of society.”

Meanwhile, Robert Mueller had a curious comment in his discussion about the ongoing al Qaeda threat. He said that airplane plots remain a threat. The individuals responsible for previous airline attempts still out there, he said.

Um, I thought we had killed at least one individual responsible for previous airline attempts in September 2011. You mean Anwar al-Awlaki wasn’t the mastermind of the UndieBomb threat?

Of course not: Ibrahim al-Asiri was the operational mastermind of it (or maybe Abu Tarak!). Which is why we had another purported attempt last year, more than six months after Awlaki died.

In any case, Mueller’s comment seems to be an at least implicit admission that the Administration oversold Awlaki’s single centrality to the first UndieBomb plot.

The Bipartisan Effort to Keep Robert Mueller on at FBI Starts

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I’m watching the Senate Intelligence Committee’s hearing on Global Threats.

And I’m a bit alarmed that both Dianne Feinstein and Saxby Chambliss used their statements to suggest Robert Mueller should stay beyond the end of his already-extended term this year.

DiFi said,  “unless Congress intervenes again, this threats hearing will be the last one for Robert Mueller” and then looked at him and said, “it could happen.”

Then Saxby repeated that line, saying he would shortly approach Mueller to ask him to stay on again.

Before his statement, James Clapper also nodded to Mueller, noting he has served as Director for 12 years.

We have terms for FBI Director for good reason. Not just to prevent the rise of another J Edgar Hoover, one person with an empire over the secret information collection in the US. But also to bring a fresh approach to such things as our manufacturing of “terrorists.”

 

Wiretapping Your Business Records: The White House Doesn’t Want You To Be Confused

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Sadly, whoever liberated the White House talking points on the FISA Amendments Act extension didn’t get them to TechDirt until after most of the so-called debate was over.

Particularly given this explanation for why the White House opposed Pat Leahy’s efforts to shorten the extension to three years, which would have made the next extension coincide with the PATRIOT Act extension that will be debated in the year before a Presidential election.

Aligning FAA with expiration of provisions of the Patriot Act risks confusing distinct issues.

TechDirt suggested the White House thinks Congress is stupid.

Is the White House really arguing that Congress is too stupid to hold the specifics of the FAA separate from the specifics of the wider Patriot Act? If they’re confused by those issues, then they shouldn’t be in this job. Period.

But I think this talking point is far more telling. Because, in fact, there is a great deal of circumstantial evidence that FAA and one of the three things that will be up for extension in 2015–Section 215–are not at all distinct.

Section 215, remember, is the “Business Records” provision that allows the government to get any tangible thing that is relevant to a national security investigation. We know Section 215 has been used to collect records of acetone and hydrogen peroxide purchases, and there’s abundant reason to believe the government has used Section 215 to get cell geolocation data.

Moreover, Ron Wyden and Mark Udall have pointed to Section 215 as part of the “secret law” they’ve been complaining about, even while they also point to FISA Court opinions tied to that “secret law.”

Historically, too, there seems to be a chronological tie. In the weeks after the May 11, 2004 hospital confrontation, Cheney had a secret meeting with just Robert Mueller; FBI started bypassing DOJ’s Office of Intelligence Policy Review to get Section 215 orders; and FBI obtained its first ever Section 215 order. Then, in the months after the revelation of the illegal program in 2005 (and during that year’s debate on PATRIOT renewal), the government used Section 215 to get subscriber information on trap and trace orders.

In other words, it seems possible that in response to Jim Comey and Jack Goldsmith’s efforts to stop the data mining of US person call records collected without any legal basis, the government started collecting call records under FBI orders to accomplish the same result and they repeatedly turned to Section 215 to provide legal cover for the illegal collection they refused to stop.

In fact, (I’m trying to track this down) Jeff Merkley made a speech on Thursday that invoked the Section 215 relevance standard at one point, not the FAA foreign standard. So Merkley, at least, does seem to think there’s a tie between Section 215 and FAA.

It seems, then, that the White House was (surprise!) being totally disingenuous with its purported worry that people would conflate the warrantless wiretap program with the collection it conducts using Section 215. More likely, they were worried that having these debates at the same time would make it more obvious that they’re conducting part of their warrantless surveillance program under FAA, and part of it under Section 215.

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Petraeus Rules

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While the Beltway is slowly coming around to the logic that it’s not a good thing if the CIA Director has a pseudonymous Gmail account he uses to conduct an affair, it has yet to consider some other factors that may have forced David Petraeus to quit.

As a threshold matter, it appears that both Petraeus and Paula Broadwell did things that have gotten others–people like Thomas Drake–prosecuted and stripped of their security clearance. Obama can’t continue his war on leakers if he goes easy on Petraeus after compromising his own email account. In addition, it appears that as the FBI closed in on Petraeus, he and Broadwell may have pushed back by revealing (or claiming) CIA had prisoners in Benghazi. That is, in some way Petraeus and Broadwell’s response to the investigation appears to have colored how they treated the Benghazi pushback going on at precisely the same time.

Here’s a decent timeline of Petraeus’ demise (though many of these details–from the start date of the affair, the investigation, and Petraeus’ FBI interview have been reported using different dates, suggesting different anonymous stories may be offering different timelines). I’d like to concentrate on the following, which include a few additions.

[Week of, possibly day of] October 21 [alternately reported as September]: Paula Broadwell first interviewed by FBI. She agrees to turn over her computer, which will lead to the FBI finding classified information on it.

October 24 (written the day before): Petreaus applauds the guilty plea of John Kiriakou, who passed the identity of torturers to lawyers representing Gitmo detainees who have been tortured. Those lawyers have clearance, and they did not publicly reveal the most sensitive name. In his second-to-last statement as CIA Director, he writes,

This case yielded the first IIPA successful prosecution in 27 years, and it marks an important victory for our Agency, for our Intelligence Community, and for our country.  Oaths do matter, and there are indeed consequences for those who believe they are above the laws that protect our fellow officers and enable American intelligence agencies to operate with the requisite degree of secrecy.

October 24: Benghazi suspect killed in Cairo.

October 26: Fox reports that CIA security in annex were twice told to stand down by “CIA chain of command.”

October 26: At an appearance at DU, Paula Broadwell says,

Now, I don’t know if a lot of you heard this, but the CIA annex had actually, um, had taken a couple of Libyan militia members prisoner and they think that the attack on the consulate was an effort to try to get these prisoners back. So that’s still being vetted.

The challenging thing for General Petraeus is that in his new position, he’s not allowed to communicate with the press. So he’s known all of this — they had correspondence with the CIA station chief in, in Libya. Within 24 hours they kind of knew what was happening.

Update: See this post, which makes it clear Fox had the detail about prisoners but then took it out.

October 27: Petraeus and Broadwell hobnobbing at black tie event.

October 29: FBI interviews Petraeus.

October 31: Acting after speaking to FBI “whistleblower,” Eric Cantor’s Chief of Staff calls Robert Mueller about investigation.

October 31- November 1: Petraeus in Cairo for security discussions.

November 2 [based on a briefing held November 1 while Petraeus was still in Cairo]: CIA releases timeline rebutting Fox report–mentioned by Broadwell–that CIA chain of command told security to stand down.

November 2: FBI interviews Broadwell a second time.

November 2: Scott Shane writes odd article on demise of Petraeus’ image, blaming his absence from media for Benghazi blowback, in part repeating a point made by Broadwell on October 26. Read more →

The Top Unmentioned Obama Replacement: Robert Mueller

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A slew of second-term cabinet speculation articles have come out (National Journal, first posted before the election, and NYT and USAT today).

And while they seem to indicate Jack Lew is likely to replace TurboTaxTimmeh Geithner and Secretary of State will be the subject of active speculation for some time (with intriguing speculation that Howard Berman, who lost to Brad Sherman in CA, might be under consideration), one key role–albeit not of cabinet level–is missing:

FBI Director.

After all, Robert Mueller is already 2 years beyond his sell by date; Obama extended his term to get past the election (he said). And regardless of rank, the FBI Director is one of the most important figures in the increasingly powerful surveillance state.

And there have been some very troubling names mentioned in discussions to replace him, including NYPD’s Ray Kelly, who would really be the second incarnation of J Edgar Hoover’s abusive power. There had been speculation that Patrick Fitzgerald wanted the job, but his decision to join Skadden Arps just before the election suggests he knew he wasn’t going to get that job.

Particularly given Eric Holder’s apparent increasing doubt that he’ll stick around, we have the possibility of seeing something worse–all the capitulation we got from Holder in the first term, plus and FBI Director who has none of the claimed measure of Mueller (though I’ve always had my doubts about those claims).

A new FBI Director (which is guaranteed), particularly if it came with a new Attorney General, could either set a dramatic new course or harden in the old course. And I fear it is most likely to be the latter.