Amidst the widespread journalistic euphoria for AG Garland's recently announced restrictions on the use of compulsory process to obtain info from the media, I have a few nits to pick: 1. As a general matter, it is not entirely clear how the AG memo substantively differs from /1
the current content of 28 CFR §50.10 which sets out DoJ policies in pursuing info from members of the news media.
2. Section 50.10 specifically includes, as a factor in the balancing test referenced in Garland's memo, the need to safeguard "the essential role of the free /2
press in fostering government accountability and an open society." 3. Section 50.10 already requires AG approval for a §2703(d) or 3123 subpoena seeking records of electronic communications, the most intrusive form of search short of a search of person or residence /3
Yes, to be clear, the report that LeBlanc excoriates is the classified report the PCLOB submitted to Congress, NSA and other concerned federal agencies addressing NSA’s XKeyscore collection program and, in fairness, it seems much easier to take public shots at the content of /1
the classified report with which LeBlanc obviously disagrees when the actual content of the report cannot be publicly disclosed. That said, there are aspects of LeBlanc’s criticisms that suggest he perceives a role for the PCLOB that exceeds the statutory mandate Congress /2
created for that agency. The PCLOB’s purpose as expressed by Congress is “(1) analyze and review actions the executive branch takes to protect the Nation from terrorism, ensuring that the need for such actions is balanced with the need to protect privacy and civil liberties; /3
I have documented my concerns regarding the issue of essentially immunizing the press through a de facto federal shield law where leaks involve the disclosure of classified national security information. E.g. law.upenn.edu/live/news/1105….
So, like @charlie_savage, I'm curious 1
about the details of the new Biden-Garland DOJ policy. For example, let's assume the leak divulges classified information concerning the communications intelligence activities of the U.S. According to 18 USC §798, the transmission of such classified information is a crime AND 2
the act of publishing such information is also a separate and distinct crime. So, does the new DOJ policy mean that this administration is foregoing the option of subpoenaing a reporter to ascertain the source of a leak where both the leaking and the publication of the 3
The subpoenaing of reporters has been much in the news with many media organizations lauding the Biden Administration’s statement that issuing subpoenas for the records of reporters in leak investigations is not consistent with 1
the President’s policy as provided to DoJ. If this statement means the Administration has ruled out subpoenaing reporters under any circumstances in any leak investigation, this is, frankly, contrary to existing DoJ regulations developed and implemented during the Obama, not 2
the Trump, Administration.
A basic principle of the American judicial system is that the public has a right to every man’s evidence. No blanket exception exists for media members or newsgathering activities. Notably, there is no federal shield law protecting newsgathering 3
I'm delighted at the successful effort by DoJ in this leaks case. But, again, the prosecution stops at the transfer to the reporter. Why? It's clear from the DoJ press release that the recipient reporter's news outlet published, in whole or in part, no less than 23 of the /1
documents leaked by Hale. Further, "[e]leven of [those]documents were marked as Top Secret or Secret."
DoJ's superseding indictment in the Julian Assange case lays out the approach to prosecuting the reporter/publisher receiving classified information, and I write about /2
To be clear, this ODNI report is a declassified version of the classified report, which remains classified. It differs from the 2017 IC Analysis, which focused exclusively on Russian activities and intentions regarding the 2016 election, by evaluating the conduct of other /1
foreign actors directed at the 2020 election. The Report uses the same estimative language as the 2017 version but, unlike 2017 version, does not identify the views of individuals agencies within the IC.
Key takeaways: (1) there is no indication that any foreign actor /2
attempted to alter any technical aspect of the 2020 voting process. The Report notes that"unlike 2016, we did not see persistent Russian efforts to gain access to election infrastructure." (2) But, Putin did authorize, and Russian actors conducted, influence ops aimed at /3
There is a need for some context here. The FBI's FISA process has received justified criticism with respect to its Carter Page FISA applications. However, it is worth noting, given the implications of this post, that a review of other FBI FISA applications identified by the /1
DoJ IG revealed no material errors. Still, the Page situation produced plenty with which to be concerned about the FBI's FISA process. But, best not to get too far ahead on this case. The defendant, Gartenlaub, filed a motion to suppress in his criminal trial that was denied /2
by the trial judge so, unlike Page, a FISC judge reviewed the initial FISA application (likely for both surveillance and physical search authority) AND another federal judge reviewed the record in connection with the suppression motion filed at trial (concluding that the /3
there is good, old Rule 11 of the Federal Rule of Civil Procedure. It says: when a lawyer signs on to a lawsuit, the signature is a representation that (1) the action is not being filed for an improper purpose, (2) the claims are warranted under existing law or /2
by a non frivolous argument for extending existing law, and (3) that the factual contentions have evidentiary support. Violations of Rule 11 are punishable by court-ordered sanctions. I sincerely hope that, when this baseless litigation is dismissed, that the Biden folks /3
Your parallels with Iran-Contra are well-taken. I worked on the Iran-Contra interagency group that coordinated the review and release of information to the Tower Commission, the Intel Committees, and the Independent Counsel. The decapitation of the Defense Department /1
the emasculation of the ODNI, and, now, even the installation of a partisan hack as General Counsel at NSA will only serve to muddy accountability and mask activities controlled out of the White House (like Iran-Contra) without customary oversight. We, at the interagency group /2
saw how the use of the NSC allowed partisan zealots to organize an international operation using enormous resources completely outside the purview of Congress or even the executive agency departments customarily charged with those functions. If nothing else, the neutering /3
The former "acting" (and I use that term in its most literal sense) DNI is completely adrift on the "unmasking" issue, just as he was when he ordered the substantively pointless but politically motivated declassification of an NSA memo detailing Flynn unmasking requests made /1
at the end of 2016. Anyone who doubts the legitimacy of the surveillance that contributed to the questioning of Flynn needs to read Sally Yates's testimony given to the Senate Judiciary Cmte. in August. Here's the Washington Post's summary: 1) The Trump transition team was not /2
being surveilled, nor was Flynn. While she could not say why because of national security concerns, it was obvious that then- Russian ambassador Sergei Kislyak was the one being monitored. Flynn wound up being recorded when he spoke with Kislyak; 2) Flynn was attempting to /3
Kim, you're quite insistent about not letting facts in the way of taking myopic /1
swipes at Comey/Brennan even when Mueller, Horowitz, and the entire IC have convincingly demonstrated that (1) the Russians interfered, in 2016, (2) Putin wanted to hurt Clinton, and (3) the Russians wanted to (and did) help Trump. This is what the unanimous Intel Community /2
Assessment concluded, and that ICA was thoroughly vetted by the Republican-controlled Senate Intel Committee who described it as "a coherent and well-constructed intelligence basis for the case of unprecedented Russian interference in the 2016 US /3
@LindseyGrahamSC described the Horowitz report this morning at the Comey hearing as a "thorough examination" - while Bill Barr has done nothing but impugn the conclusion that the FBI investigation was adequately predicated. Graham is a grandstanding ham who is misrepresenting /1
the background and timing related to the information included in the Carter Page FISA applications. Graham is futilely trying to undermine an entire FBI investigation that Horowitz concluded was adequately predicated. Graham says he is trying to insure that what happened to /2
Page never happens again but no one can offer that assurance for an activity that is conducted by humans. Retrospective examination of almost any activity scrutinized as closely as Crossfire Hurricane will reveal things that might have been done differently, perhaps better. /3
It required only a short trip, but @LindseygrahamSC has moved from hypocrite to farce with his release of the bogus intelligence assessment declassified for him by the spineless tool now serving as DNI. That unverified assessment, suggesting that Hillary Clinton led an effort /1
to link Trump with Russian election interference efforts in 2016, was so baseless that it was rejected by the Republican-controlled Senate Intelligence Committee "as having no factual basis." Graham, exhibiting the same mendacity as when he swore that he would oppose /2
any effort to seat a Supreme Court justice in an election year, displayed the integrity expected from one of Trump's most obedient supporters by insisting that the veracity of the information is irrelevant - a guiding principle of the current administration. /3
Some who follow me on Twitter have decidedly different views from mine on the current WH inhabitant. I happened to see this link posted in one of their Twitter feeds. I wouldn't ordinarily re-post it, but its absurd commentary is representative of the absurdity of the Far /1
Take particular note of the quoted Tweet stating that "Obama CIA Director John Brennan ran a secret task force out of Langley with its own separate budget to investigate Trump campaign and /2
its alleged ties to Russia." Now, a few weeks back even Fox News reported that Durham had met with Brennan for several hours and Durham told Brennan "he was not a subject or a target of [Durham's] criminal investigation."
I have a lot of problems with Durham's investigation, /3
I confess that I am a devotee of @emptywheel and follow her on Twitter. I also acknowledge that she and I come at foreign intelligence electronic surveillance from different perspectives. I began writing on FISA much later than her and my first foray was openly advocating the /1
reauthorization of Section 702 in 2017. However, I don't disagree with her on the importance of the notice requirement, in general, or on the Moalin court's reference to E.O. 12333 surveillance as included within that notice requirement.
That said, I don't see this language /2
working an earth-shattering change in government notice practice even if endorsed broadly by the courts. Given that any targeting of US Persons, even those abroad, is now covered by FISA (§ 704), any US Person collection will be "incidental" or would otherwise require a FISA /3
A cogent and accurate description. And, let's put to rest the idea that Ratcliffe's decision to terminate oral election briefings had anything to do with "security concerns." It has everything to do with Ratcliffe obsequiously seeking to satisfy his audience of One. /1
A little history of the tenuous position of DNI in the world of "alternative facts." Dan Coats had way too much integrity for Trump and their relationship was doomed to fail from the outset. When Coats had the temerity to stand up for the Intelligence Community after Trump's /2
trashing of the IC in Helsinki in July 2018, Coats was on thin ice. Having no pretense of fealty, Coats refused to back off the Intelligence Community Assessment that Russia interfered in the 2016 election, had a clear preference for Trump, and aspired to help him. /3
Absolutely on target. Most of the "requirements" in Barr's redundant memos already are part of the post-Horowitz FISA improvements undertaken by the FBI and monitored by the FISC. Misreps to FISC, for example, already must be disclosed under FISC Rules of Procedure. /1
FISA (§ 104) already requires applications to be approved by the AG upon a finding of compliance with FISA statute, and requires that FISA applications include a certification that foreign intelligence information sought cannot be acquired by normal investigative techniques. /2
Memo reduces maximum surveillance period for U.S. persons to 60 days (FISA permits up to 90 days), but FISC always has had authority to limit the period. 30-day reports are similar to Title III mandate, but FISC always had authority to require such reports as well. /3
Today's welcome en banc decision of the D.C. Circuit stalls, for the moment, William Barr's effort to spare Trump the need to abuse (again) the presidential pardon power on the undeserving Michael Flynn.
A thought or two: (1) I see where Flynn's lawyers, among the other /1
indignities ostensibly suffered by Flynn, make reference to the "continuing ignominy" suffered by Flynn while the proceedings remain unfinished. Apparently, Flynn thinks that "ignominy" will disappear as soon as Barr's absurd dismissal is granted by the district court. /2
Newsflash, Mike, no dismissal can restore self-immolated integrity. The ship containing your life without "continuing ignominy" sailed when you lied to the FBI, admitted to it under oath twice in court so that you could get a plea deal, and then tried to renege /3
Something, or someone, is wrong here. The DoJ Inspector General called Crossfire Hurricane a counterintelligence (CI) investigation. Deputy AG Rosenstein described Crossfire Hurricane as a CI investigation to distinguish it from the Special Counsel's criminal probe. /1
The Page FISA applications describe the FBI investigation as a CI investigation. The Senate Intelligence Committee describes Crossfire Hurricane as a CI investigation.
But, John Durham's criminal information against Kevin Clinesmith says the FBI investigation was /2
a Foreign Agent Registration Act (FARA) investigation? Is Durham deliberately trying to change the perception of what he is investigating because, aside from the low hanging fruit of Clinesmith (whose actions were actually uncovered by IG Horowitz), /3
I have a question for William Barr that may interest only me because I'm a veteran. Here is Barr's selective service card completed the day after he turned 18 in May 1968: archives.gov/foia/william-p… /1
Here is Barr's Senate Judiciary confirmation questionnaire completed for his latest stint as AG.
I apologize in advance for the length of this thread but Andrew McCarthy's recent (8/6/2020) article in National Review decrying the lack of a "defensive briefing" for the Trump campaign requires a response. So here goes. /1
I will try and recount what actually happened during the counterintelligence defensive briefing that candidate Donald Trump received from the FBI on 8/17/16. I use the term “counterintelligence defensive briefing’ because In an October 26, 2017 letter to Sen. Charles Grassley, /2
the FBI confirmed that it had provided a “counterintelligence defensive briefing” to the Trump campaign and that this “defensive briefing" “focused on a broad range of threats posed by foreign intelligence entities.” This is October 2017. James Comey is long gone as Director, /3