The Horowitz report bottom line according to Atlantic staff writer Adam Serwer

Follow Adam Serwer here.

...but hey, do what you want...you will anyway.

And speaking of collusion and conspiracy...

The Carter Page FISAs are out via the Freedom of Information Act.

[...]

[T]he controversy about these FISA applications first arose in February when House intelligence committee Chairman Rep. Devin Nunes released a memo claiming that the FBI misled the FISA Court about Christopher Steele, the former British secret agent who compiled the “dossier” on Trump-Russia ties and who was a source of information in the FISA applications on Page. The main complaint in the Nunes memo was that FBI whitewashed Steele—that the FISA applications did not “disclose or reference the role of the DNC, Clinton campaign, or any party/campaign in funding Steele’s efforts, even though the political origins of the Steele dossier were then known to senior and FBI officials.”

In response to the Nunes memo, the Democrats on the committee released their own memo. That memo quoted from parts of the FISA applications, including a footnote in which the FBI explained that Steele was hired to “conduct research regarding Candidate #1,” Donald Trump, and Trump’s “ties to Russia,” and that the man who hired him was “likely looking for information that could be used to discredit [Trump’s] campaign.”

[...]

The Nunes memo accused the FBI of dishonesty in failing to disclose information about Steele, but in fact the Nunes memo itself was dishonest in failing to disclose what the FBI disclosed. I said then, and I still believe, that the “Nunes memo was dishonest. And if it is allowed to stand, we risk significant collateral damage to essential elements of our democracy.”

Now we have some additional information in the form of the redacted FISA applications themselves, and the Nunes memo looks even worse.

[...]

Now we can see that the footnote disclosing Steele’s possible bias takes up more than a full page in the applications, so there is literally no way the FISA Court could have missed it. The FBI gave the court enough information to evaluate Steele’s credibility.

  Lawfare Blog

Yeah, Nunes is involved personally.  We know he was part of the Trump campaign.  We also know he's an asshole who would be very likely to have his personal fortune tied up in shady deals.

Not gonna happen.  Too many Republicans are complicit in all this shit.

Because the "president" told them to.

...but hey, do what you want...you will anyway.

When did FISC filings stop being secret?

There are no rules.  We are in free fall.

...but hey, do what you want...you will anyway.

The Memo and the FISC

We often hear that the FISA court is a rubber stamp - that they've only turned down one or two cases they ever got. While that sounds damning, the truth just might be that nobody brings them a request that isn't nailed down pretty air tight. The complaint in my mind, if there is one, about the FISA court is that it follows the bent of our entire government, and perhaps most American citizens, to fear and treat seriously any suggestion of possible terrorist acts, along with anything deemed illegal by the powers that be. The problem I see is that anyone the FBI/DOJ would like to allow to circumvent our laws would not get a referral to the FISA court even if they deserved one.  We have a system of unequal justice no matter how vehemently we proclaim "no one is above the law."

The obvious attempt to muddy the waters in the Mueller investigation that is "the memo" brouhaha seems to have at its core a claim that the FISA warrant to surveil Carter Page was sketchy because it relied on the infamous Steele Dossier that the Republicans claim was full of inaccuracies and untruths. As we are all aware, a FISA court would not have granted a surveilance warrant on only one controversial document.

Here is an ex-FBI agent's neatly presented list of things to consider when evaluating "the memo":

It’s important to understand that just because the FBI receives information (like the Steele Dossier), the Bureau cannot immediately run to a FISA court and obtain a warrant. A FISA warrant itself does not make a “case;” rather, it’s an investigative tool used in support of an existing national security case, one that normally would have been opened months, if not years, prior. [...] That means that, at some point prior to obtaining the FISA warrant, the FBI opened an investigation on Carter Page, obtained enough factual evidence to justify making it a Full Investigation, and would have done enough investigative activity to be able to put together a FISA application.

In fact, Page was already on the FBI’s radar as far back as 2013, when they obtained recordings of Russian foreign intelligence officials discussing targeting Page for recruitment. FBI officials at that time interviewed Page and warned him that he was being targeted – Page admitted that he had been in contact with these officers (not knowing they were Russian intelligence operatives). [...] [T]he FBI would have likely kept tabs on Russia’s efforts to see if they persisted and succeeded. There are even reports that Page was under FISA surveillance in 2014, which could have strengthened the basis for a new one in 2016 with renewed Russian interest in him. [...] By the time Page joined the Trump campaign in 2016, the FBI would have had three years to monitor the recruitment process unfolding (Page continued his contacts with Russia through this time, and his unusual trip to Moscow in summer 2016 was no secret) – and this is the process the FBI would have outlined in its application to the FISA court in 2016.

[...]

THE TAKEAWAY: If the Nunes Memo does not indicate when the investigation underlying the Page FISA application was opened or how many months/years of investigative activity preceding the dossier is detailed in the Page FISA application, it is not telling a sufficiently complete or accurate story.

[...]

Even if the FBI were inclined to put together a slipshod FISA application, they can’t sneak it into court without going through a bunch of lawyers at DOJ [...] the careful vetting process conducted by the National Security Division known as Woods Procedures [...] where every fact contained in the application is verified.

  Just Security

That, right there, seems to me to be the only thing we need to consider. The FISA warrant was not arbitrarily tossed out with only the say-so of one dossier. This memo uproar is nothing more than a ruse by the GOP to help Donald Trump beat obstruction of justice charges. And as far as I'm concerned, it implicates them in the obstruction.

The hardcore tinfoil hat set will likely insist that the FBI would have just created a dummy case including fabricated evidence to prop up the FISA application and trick the DOJ. Good luck. The FBI has a case system in which every document that goes into a file is “serialized” based on the date it was added – in other words, you can’t backdate fake documents and insert them. [...] Finally, a single Full Investigation would be made up of a spiderweb of sub-case files – things like sources, travel, surveillances, or any other theme the case wants to track – all of which are interconnected to the main case and to other cases agents across the Bureau may be working on and might reference.

[...]

What if the FBI convinced the NSD to just skip the Woods Procedures? This would be a pretty huge risk for the NSD lawyers, since it is they, not they FBI, who have to present the FISA application to the FISA court.

[...]

THE TAKEAWAY: If the Nunes Memo doesn’t address who conducted the Woods Procedures for the Page FISA application, any material deficiencies in those procedures, or address this part of the DOJ review process at all, it is skipping over a critical part of the vetting process.

[...]

Here’s where the Nunes conspiracy theory gets really dicey: For it to be true, it necessarily involves members of the federal judiciary. This is because when all is said and done, the FISA judge – one of 11 district court judges who sit on the FISA court in rotation (and who were appointed by Republicans and Democrats) – makes the ultimate call.

[...]

Legally speaking, political activity is afforded the highest protection under the First Amendment, and Carter’s former role in the political campaign would have triggered extra scrutiny and questioning by the court regarding the probable cause stated in the application. Second, any sane judge would recognize the potential volatility of this FISA application, and understand that given Congress’ oversight role with FISA, the application could (and likely would) come under close scrutiny at some point.

[...]

THE TAKEAWAY: Alleging a concerted conspiracy by the FBI/DOJ in obtaining the Page FISA necessarily implicates the judge who approved it, and suggests they are incompetent (at best) or corrupt (at worst). If Nunes is alleging serious crimes on the part of the FBI and DOJ, he must put his money where his mouth is and identify the judge who approved the FISA application.

That is not to say it's inconceivable that even a secret court judge at the highest level can't be bought (or is maybe politically biased), but he or she would have to be willing to destroy his/her career and spend some quality time in jail to approve a legally unwarranted warrant.

[E]ven if the FBI managed to “dress up” the dossier without any other supporting evidence, bypassed the vetting procedure, and got past a federal judge, the most they would get for all of this work is three months of surveillance. [...] [W]hen a FISA order is obtained on an [US person], the FBI must go back to the FISA court (perhaps before a different judge than the first time) within 90 days and demonstrate that the surveillance has, in fact yielded foreign intelligence substantiating the original probable cause alleging that the target is engaging in clandestine intelligence activity on behalf of a foreign power. If the FBI cannot show this evidence, the surveillance is terminated.

[...]

More importantly, by the time Rod Rosenstein was appointed as Deputy Attorney General by President Trump, a FISA order on Carter Page, if it was still running, would have been in effect for close to six months. This means that the surveillance would have already been extended at least once by a FISA court based on new communications collected after the order, thereby validating the basis for the original order itself.

THE TAKEAWAY: Neither the FBI nor the DOJ has the power to extend a FISA surveillance order, they must request it. If a request to extend FISA surveillance that began in September 2016 was made by DAG Rosenstein in or around March 2017, the FBI had shown a federal judge that it had collected additional foreign intelligence information justifying the original order at least once already, around December 2016. The Nunes Memo should address [this] fact.

[...]

Anything that happened with regard to the original application for the Page FISA order would have occurred months before Mueller was even appointed as Special Counsel for the Russia investigation. Mueller, by all accounts (including my own experience having worked in the FBI under his leadership) does not tolerate nonsense. In taking over the investigation, he would have vetted all the underlying evidence that had been gathered so far, including anything gathered from FISA orders and the underlying basis for obtaining them. [...] We know that Mueller sent FBI agents to interview Carter Page: It’s hard to believe that he would have proceeded in any way on Page if he was aware that the underlying investigation to that point had been based on anything but legal, corroborated information.

Of course, part of the GOP desperation push is an attempt to make Mueller seem biased, corrupt, or in some way compromised - an attack on Mueller personally.  They've laid kind of low on this, obviously due to Mueller's high reputation in the DOJ and both sides of Congress.  You can bet they've been searching under every rock to find something to pin on him, and if they'd found it, they would have been leaking it

THE TAKEAWAY: Anything that discredits the Page FISA application by definition is intended to cast doubt on the Mueller investigation. (This may also be an attempted implication of the Nunes Memo if it tries to tar DAG Rosenstein, since each major step that has been taken by Mueller have been approved by DAG Rosenstein.) If this is the case, then Mueller should be named directly in the memo as someone who has personally engaged in misconduct. [...] If he is not, it is because Nunes knows that this is a line he cannot politically cross directly without real evidence – and is trying to do so indirectly.

[...]

In sum, the Nunes Memo reportedly alleges that at least a dozen FBI agents and DOJ prosecutors fabricated evidence, engaged in a criminal conspiracy to commit perjury, lucked out on being randomly assigned Judge Low Blood Sugar who looked the other way, and – coincidentally – ended up obtaining evidence that justified extending the initial FISA surveillance. This conspiracy was presumably signed off on by former FBI Director [...] Comey – who, while conspiring to bring down Trump, actually shifted the election in his favor by informing Congress he had reopened the Hillary Clinton email investigation one month after the Page FISA warrant. The sham FISA was validated by one or more federal judges who either didn’t know better or were in on the whole secret and later accepted and used by Special Counsel Mueller who was not a part of the FBI during this time at all.

[...]

If Nunes has in fact singlehandedly uncovered this vast criminal enterprise, it’s hard to know what’s more astonishing: That a government bureaucracy managed to pull it off – or that Nunes has exposed it all in a scant four-page memo.

Bingo.

What's wrong with "the memo"

If I thought for a moment Congress would actually rein in FBI abuses and provide oversight that prevented things like destroying whistleblowers rather than protecting them and setting up mentally ill and disillusioned young men to get a win for the "war on terror," I'd be all for an investigation of the FBI. But that's not what will happen. It's only meant to protect the Turd in Chief.

Here's a Twitter thread from Julian Sanchez that is both more articulate and reasoned on this idea. It begins:

Julian Sanchez article on the subject.

Trust Us, We Have Internal Checks

The notion that the National Security Agency could police its own internet dragnet program with minimal oversight from a secret court has long drawn scoffs from observers. Now it appears that skepticism was completely justified.

[...]

[T]he Department of Justice informed the FISA Court, which oversees the NSA program, that the NSA had been collecting impermissible categories of data — potentially including content — for all five years of the program's [metadata collection and analysis to try and identify people emailing terrorist suspects] existence.

[...]

The Justice Department later told the court that "virtually every" internet dragnet record "contains some metadata that was authorized for collection, and some metadata that was not authorized for collection." In other words, in the more than 25 checks the NSA's general counsel should have done between 2004 and 2009, it never once found this unauthorized data.

[...]

Also, ODNI claims that the FISC-authorized internet dragnet has been shut down. [...] But during precisely the same weeks when NSA's general counsel was busy not finding the illegal data in virtually every internet dragnet record, NSA piloted a new program to permit its analysts to do the same kind of analysis on the metadata of U.S. persons collected under an executive order (Executive Order 12333). NSA expanded the program to all of NSA in early 2011, before NSA shut down the internet dragnet program.

That means there is a related dragnet program out there with nowhere near the level of oversight as the old one — the one that managed to compile five years of serious violations that the NSA never detected.

  The Week/Marcy Wheeler

...but hey, do what you want...you will anyway.

Legacy of the Big Dick

Mark Danner has an interesting article on Dick Cheney wherein he recounts the movie moment (one of them) in Dubya’s presidency where – if you are to believe Dubya’s memoir – the dunce prince was not even involved in his presidence enough to know that the surveillance order he signed was being resisted by his justice department.

The key passage, I think, is this:

The president had approved Stellar Wind on October 4, 2001, a few weeks after the September 11 attack, and given the temper in Washington and in the country at that time he likely could simply and easily have amended the law. “We could have gone to Congress, hat in hand, the judicial branch and the executive together,” Royce Lamberth, then the chief FISA court judge, tells Gellman, “and gotten any statutory change we wanted…. But they wanted to demonstrate that the president’s power was supreme, and the judiciary was just a tagalong when necessary, but not appreciated.” They didn’t want to change the law, that is; they wanted to circumvent it, and so demonstrate that, in the face of the president’s wartime powers, the law didn’t matter.

And I believe that Dick Cheney’s agenda all along was to take the oval office himself at the end of Bush’s second term. But then it all went horribly wrong for him.

Read the article – very interesting, even though some assessments may be questionable. (For instance, he calls Dubya “intelligent” – what does that make every other president? Genius?)

It is an astute point, all the more so for seeming obvious: the unique policies put into effect by Bush and Cheney were not consequences of the September 11 attacks but calculated responses to them. There was nothing fated about Stellar Wind, or “black sites” and the “enhanced interrogation techniques” that were practiced in them, or Guantánamo and military commissions; these and the other distinctive post–September 11 policies that still cast their shadows over us were born of choices made by government officials and, in the event, by a vanishingly small number of them.

Which makes the secret way our government runs a recipe for disaster. Barton Gellman, quoted by Danner, says Cheney ushered in a new world where the executive proceeded “by rules invented on the fly.” Unfortunately, he’s right.

But the reader is left to puzzle out who exactly Bush is referring to when he writes that “some in the White House” wanted him to let [Deputy Attorney General James] Comey, [FBI Director Robert] Muller, and their colleagues, and perhaps [Attorney General John] Ashcroft himself, resign. Even writing his memoirs years after leaving office Bush is loathe to identify Cheney as the antagonist who almost scuttled his presidency—though had he done so, his account, which portrays an incurious president very much out of touch, might have been less embarrassing to him personally.

Perhaps he’s too clueless to be embarrassed. Or perhaps he thought it better not to be shot in the face.

It goes on still. This is the way of the post–September 11 world, where whistleblowers and news organizations reveal what would have once been considered illegal and then, years later, find themselves “revealing” it yet again, and then again. So it has been with torture and extrajudicial killing and warrantless wiretapping. We might call these frozen scandals, which begin in revelation and white-hot controversy and end with our learning to live with secret wrongdoing that is in fact no secret at all. This is our new normal—and a vital attribute of the world Dick Cheney bequeathed us.

Pretty Words

“The president’s speech outlined several developments which we welcome. Increased transparency for the Foreign Intelligence Surveillance Court, improved checks and balances at the FISA court through the creation of a panel of advocates, and increased privacy protections for non-U.S. citizens abroad – the first such assertion by a U.S. president – are all necessary and welcome reforms.

“However, the president’s decision not to end bulk collection and retention of all Americans’ data remains highly troubling. The president outlined a process to study the issue further and appears open to alternatives. But the president should end – not mend – the government’s collection and retention of all law-abiding Americans’ data. When the government collects and stores every American’s phone call data, it is engaging in a textbook example of an ‘unreasonable search’ that violates the Constitution. The president’s own review panel recommended that bulk data collection be ended, and the president should accept that recommendation in its entirety.”

A new chart comparing the ACLU’s proposals, President Obama’s announcement, and the USA FREEDOM Act (a bipartisan bill currently pending in Congress) is at: aclu.org/national-security/where-does-president-stand-nsa-reform ACLU Action is demanding an end to dragnet surveillance at: aclu.org/endsurveillance

  ACLU Executive Director Anthony D. Romero

“Anytime you assemble a massive database of sensitive information, you make everyone less secure,” Alex Abdo, an attorney with the ACLU, argues. “We are fundamentally less secure when we have our sensitive information aggregated, whether by government or by companies forced to keep it for the government. Until further notice, bulk surveillance is in place.”

The basic situation is this: Obama did not back away from the core principle that this bulk collection is necessary to keep Americans safe. As he put it, the goal will be to “establish a mechanism that preserves the capabilities we need without the government holding this bulk metadata.” The key word there being “preserve.”

[...]

For Obama, the debate should be about how to collect this metadata in a way that maximizes public confidence that privacy rights are protected. For civil libertarians, the debate should be over whether to collect that metadata at all — the bulk collection itself is an abuse, one that is not central to keeping the nation safe, despite Obama’s protestation otherwise.

[...]

He outlined a number of reforms that will increase transparency into collection of metadata and the legal rationale for it. He called for the creation of a panel of outsiders that will represent the public before the FISA court, meaning that it won’t be hearing only the government’s arguments.

  WaPo

And that is indeed a step above the situation as it has existed where only the government’s representatives could argue at the court. But we can expect the people on that panel to be appointed, not elected. “Outsiders” remains to be seen – how far outside and with what connections?

He said a court order will now be required before the government can get access to that data.

How nice for the government. The fact that the data is collected and stored by anyone leaves the situation exactly as is. It is private, unwarranted data that is stored somewhere giving access to people who have no business having it. Not to mention…how hard is it for the government to get a court order?

Obama repeatedly said that the public’s confidence that their privacy is being safeguarded is a paramount goal.

And that is the bottom line and the reason for any action at all. The public has lost confidence. Restore the public’s confidence, and you can do what you want.

ProPublica refutes four of Obama’s assurances to the public:
1. There have been no abuses.
2. At least 50 terrorist threats have been averted.
3. The NSA does not do any domestic spying.
4. Snowden failed to take advantage of whistleblower protections.

All wrong. So why would you believe him now?

FISC Ruling Declassification Mad Libs

How nice of the government to declassify the document.

On Wednesday, the Office of the Director of National Intelligence released a 2011 FISA Court ruling striking down a top-secret National Security Agency online-surveillance program. The court, whose opinions are normally classified, found that the agency had accessed as many as 56,000 electronic communications (such as emails) from American citizens and foreign nationals over a three-year period by tapping into fiber-optic cables.

The ruling is 86 pages long, but don't expect to read all of it.

[...]

[T] ake your best guess at what the redacted opinions should say with our NSA Choose-Your-Own-[Redacted] Mad Libs:

Click to play at Mother Jones:

Declassified

The National Security Agency unlawfully gathered as many as tens of thousands of e-mails and other electronic communications between Americans as part of a now-discontinued collection program, according to a 2011 secret court opinion.

The 86-page opinion, which was declassified by U.S. intelligence officials Wednesday, explains why the chief judge of the Foreign Intelligence Surveillance Court ruled the collection method unconstitutional. The judge, John D. Bates, found that the government had “advised the court that the volume and nature of the information it has been collecting is fundamentally different from what the court had been led to believe.”

In the opinion, Bates also expressed deep frustration with the government, saying that it had “disclosed a substantial misrepresentation regarding the scope of a major collection program” three times in less than three years.

[...]

In addition to the October 2011 court ruling, which was heavily redacted, U.S. intelligence officials on Wednesday released other documents, including a follow-up order about the NSA’s revised collection methods.

The documents were released in response to a Freedom of Information Act lawsuit filed by the Electronic Frontier Foundation.

  WaPo

I wonder how long before the FOIA will be struck down.

UPDATE:  Declassified....and heavily redacted.

What You Thought Was Private Data...

...is most likely part of the "corporate store."

The FISC's rules provide the appearance of limited and targeted access to Americans' phone records — but the reality is far different. When a single query is, in fact, a three-hop frolic through American's phone records, the initial restraints lose much of their force. And, when the NSA can combine the results of all these queries for future, unrestricted analysis, the FISC's front-end protections have almost no significance at all. The weakness of the back-end controls renders the front-end protections all but irrelevant.

  ACLU

Read this article to see just how misleading government statements about the safety measures on your privacy rights are.

...but hey, do what you want...you will anyway.

Inching Through the Courts (Updated)

The Foreign Intelligence Surveillance Court, or FISC, ruled Wednesday that it has no objection to the release of a 2011 opinion of the court, which found that some of the National Security Agency’s surveillance programs under the FISA Amendments Act, were unconstitutional.

[...]

On Friday, the Department of Justice, or DoJ, had argued that the court’s opinion must remain secret and its release of the opinion would contradict the FISC's own rules on disclosure of classified documents, according to NBC News.

[...]

The nation’s most secretive court, as it has been called in the media, said that the 86-page classified opinion can be made public if a district court orders it.

[...]

[The] NSA’s PRISM program, which has sparked public outrage over Internet users’ privacy rights, is based on the same sections that the FISC found was circumvented by the security agency.

[...]

EFF attorney Mark Rumold welcomed the court’s ruling and said it is the first victory for a non-governmental party in the FISC.

"It's important to know that while this is a victory, it is a pretty modest one," he said. "It's the FISC realizing that the Department (of Justice) was making crazy arguments, and they quickly got rid of it. Now we have to go right back to the district court."

  IBTimes

Oh, and Greenwald says he’s working on further stories – implied to be related to the information provided him by Snowden.

UPDATE:

 

We're America.  We're special.