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For Comey, Hard Questions About Rudy Giuliani And The FBI

For Comey, Hard Questions About Rudy Giuliani And The FBI

For months, the White House has insistently whined that the Federal Bureau of Investigation is persecuting the president. Echoed by right-wing propaganda media, that theme is now amplified in Donald Trump’s tweeted blasts at former FBI director James Comey, whom he vilifies as a “liar and leaker.”

 To anyone who remembers the final days of the presidential election, Trump’s paranoid claims have always seemed ludicrous. If the bureau appeared to be tilted, it was firmly in his direction, especially in its handling of the criminal investigations of him and Hillary Clinton.

 Now Comey’s media tour promoting his new book, A Higher Loyalty, offers an opportunity to debunk such mythologizing — and to ask a few unanswered questions about the bureau’s perverse role in that election.

 In his book and media appearances, the former director tries to justify his denunciation of Clinton’s management of her emails in July 2016 when he declined to recommend prosecution — and his stunning revelation, less than two weeks before Election Day, that the bureau was examining emails on a laptop owned by her aide Huma Abedin.

 Comey insists those fateful choices reflected his moral instincts. But they also appear to have arisen from internal political dissension and thinly veiled threats of negative leaking about the Clinton probe.

 Openly voicing such threats, on Fox News and other media outlets, were former prosecutor and mayor Rudolph Giuliani and James Kallstrom, a former head of the New York FBI office. Both men repeatedly claimed to be in contact with FBI agents furious over the decision not to prosecute the Democratic nominee – if true, a blatant violation of Justice Department rules and traditions.

 As a Trump campaign surrogate, Giuliani said he had spoken with FBI agents who were “embarrassed” by Comey’s decision not to prosecute Clinton. Going further, Kallstrom warned that those agents were “not going to take this sitting down.” Appearing on Fox in late September, Kallstrom said that the agents working on the Clinton case “feel like they were stabbed in the back,” and added, “I think we’re going to see a lot more of the facts come out in the course of the next few months. That’s my prediction.”

 On October 26, just two days before Comey informed Congress about the Abedin emails, Giuliani hinted on Fox that Trump “has got a surprise or two that you’re going to hear about in the next few days…We’ve got a couple of things up our sleeve that should turn this thing around.”

 Which “couple of things” did Giuliani mean, exactly?

 Meanwhile the grave details of the FBI counter-intelligence investigation into the Trump campaign’s Russian connections, opened in July 2016, remained secret from the public. The only apparent leak about that probe appeared in a New York Times article the week before Election Day, under a headline that minimized its seriousness: “Investigating Donald Trump, FBI Sees No Clear Link To Russia.”  That was an actual cover-up, with shattering consequences.

 The blatant political pressure from within the FBI to discredit Clinton disturbed Democrats for months after the election. Among them was Senator Patrick Leahy (D-VT), a former FBI special agent himself, who inquired about that sore subject when Comey made his final appearance as FBI director before the Senate Judiciary Committee.

“During your investigation into Hillary Clinton’s emails, a number of surrogates like Rudy Giuliani claimed to have a pipeline to the FBI….He even said that he had – insinuated that he had advanced warning about the [Abedin] emails described in your October letter. Former FBI agent Jim Kallstrom made similar claims. Now either they’re lying, or there’s a serious problem within the bureau.”

Comey told Leahy he was investigating those troubling circumstances. “I don’t know yet. But if I find out that people were leaking information about our investigations, whether it’s to reporters or to private parties, there will be severe consequences.”

Nothing came of that promise, made not long before Trump fired him. But the questions remain:

Did Comey ever investigate leaks from within the bureau to Giuliani and Kallstrom? What did he learn about their contacts and activities? Did he take any action when he heard their televised claims that agents were discussing the investigation with them? Does he know who leaked the stories about the Abedin emails and the Clinton Foundation? And does he know whether FBI director Christopher Wray or the Inspector General of the Justice Department are examining these breaches of conduct?

He’s doing a lot of interviews. Someone should ask him.

What The Proposed NSA Reforms Wouldn’t Do

What The Proposed NSA Reforms Wouldn’t Do

by Kara Brandeisky,ProPublica.

Ten months after Edward Snowden’s first disclosures, three main legislative proposals have emerged for surveillance reform: one from President Obama, one from the House Intelligence Committee, and one proposal favored by civil libertarians.

All the plans purport to end the bulk phone records collection program, but there are big differences—and a lot they don’t do. Here’s a rundown.

President Obama’s proposal

What it would do: As described, the president’s proposal would prohibit the collection of bulk phone records. Instead, the government would seek individualized court orders every time it wants American phone metadata. The government would get the data from telecoms, which already keep it for at least 18 months.

The proposal would solidify some changes Obama has already made: For instance, since January, analysts have needed to get court approval before searching the phone records database. Also, NSA analysts have only been able to obtain records from people who are two “hops” away from a surveillance target—a target’s friends’ friends—rather than three “hops” away. Obama’s proposal would make both of those policies law.

What it wouldn’t do: It’s hard to know. The White House hasn’t released the actual text of the legislation, and lawmakers have yet to introduce it in Congress. But privacy advocates do have a lot of questions.

One thing the president hasn’t proposed: ending the bulk phone records program now. He could do that without any vote if he simply stopped asking the Foreign Intelligence Surveillance Court to reauthorize the program, as Senator Patrick Leahy (D-VT) has suggested.

The secret surveillance court’s last 90-day order for Verizon phone records has expired. President Obama reportedly wants the court to renew the program at least one more time, to give Congress a chance to pass new legislation. Until Congress acts, the NSA will continue collecting American phone records in bulk.

Of course, if President Obama were to act unilaterally, another president could later reverse his changes. If Congress passes his proposal, his reforms will have the force of law.

The president’s proposal also appears to address only one of the NSA’s many surveillance programs. It doesn’t seem to change the FISA Amendments Act, which allows the NSA to sweep up foreigners’ communications without a warrant. In the process, the NSA “incidentally” collects Americans’ communications.

In January, Obama said he would ask the Justice Department to limit the government’s authority to use any American communications collected while targeting foreigners. The administration has not offered any details yet. However, even the Senate’s biggest NSA critics say the FISA Amendments Act has been an effective counterterrorism tool, so Congress is unlikely to repeal it.

FISA Transparency and Modernization Act

What it would do: Very little to limit surveillance. Introduced by House Intelligence Committee chairman Rep. Mike Rogers (R-MI) and ranking member C.A. Dutch Ruppersberger (D-MD), this bill represents the wishes of the NSA’s biggest defenders in Congress.

The bill nominally bans the government’s bulk collection of phone records. Like Obama’s plan, telecoms would keep the records, but this in proposal, the government could request the records without a court order.

The bill also says it would prohibit the government from indiscriminate collection of other kinds of data, including “library circulation records,” “firearm sales records,” and “tax return records.” But the government could still use search terms to get the records it wants.

What else it would do: Roll back current protections in the law. The legislation would no longer require that the government get a court order before obtaining American records. Instead, the secret surveillance court would review the privacy procedures before the Justice Department collects any records, and the court could also tell the government to stop collecting records after the fact.

Also, under current law, the government needs to show that records are related to foreign terrorism or clandestine intelligence activities. Rogers’ bill would change that standard, requiring the government to show that records are for an individual who is associated with a “foreign power” — a broad term that includes terrorist groups, foreign governments and foreign political groups.

If the bill passes, a lot would depend on how the secret surveillance court interprets it. For instance, what kinds of “selection terms” could the government use to search for records? The broader the search terms, the more likely it is that innocent people will get caught in the dragnet.

Finally, Rogers’ bill would not amend the FISA Amendments Act. “I don’t believe that foreign collection on foreign soil is something that we need to change,” Rogers said.

This bill has House Speaker John Boehner’s support.

USA Freedom Act

What it would do: A lot. First, the bill’s authors, Democratic senator Leahy and PATRIOT Act author Rep. James Sensenbrenner (R-WI) say the legislation would end all bulk collection of American records. To do so, they’d narrow the language in the PATRIOT Act to require that the government only collects records that are “relevant and material” to an authorized investigation. To qualify, an investigation must be related to foreign terrorism or clandestine activities, and the records must directly “pertain” to a foreign power.

The proposal would also close a so-called backdoor loophole that allows the NSA to search its databases for the content of Americans’ communications. Under the new bill, analysts would need an individualized warrant to access any domestic content collected “incidentally.”

In addition, the lawmakers would also tighten oversight of national security letters, a kind of administrative subpoena that lets the FBI obtain records related to “national security” without a court order. The idea is to make sure that the government can’t use the national security letters law to justify bulk collection of American records in the future.

What it wouldn’t do: The bill covers a lot of bases and has won the support of the ACLU, the Electronic Frontier Foundation, 142 representatives and 21 senators.

However, some worry that the bill does not unequivocally ban bulk collection of American records. Again, a lot depends on how the Foreign Intelligence Surveillance Court interprets the statute. While this bill’s language is narrower than current law, we now know the secret surveillance court has interpreted the PATRIOT Act very broadly. The EFF has suggested that the bill’s sponsors make their intent more explicit.

This bill has by far the most co-sponsors, but its prospects are uncertain — it was introduced in October, and it still hasn’t reached the floor.

Photo via Wikimedia Commons