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Trump Can Only Hope His Lawyers Are Brighter Than Devin Nunes

Trump Can Only Hope His Lawyers Are Brighter Than Devin Nunes

From the Republican perspective, maybe the worst thing about the dueling Nunes/Schiff memos regarding the FBI’s Russia investigation is what they revealed about the intelligence of the combatants. Following the Fox News-amplified thunder of the #ReleaseTheMemo campaign, what strikes me now about the Nunes effort is how breathtakingly dumb it was.

Call me an elitist if it makes you feel better. But if you were being investigated by a prosecutor as experienced and relentless as special counsel Robert Mueller, you definitely wouldn’t want Rep. Devin Nunes (R-CA) as your lawyer.

By explicitly confirming that the FBI probe of the Trump campaign’s dalliance with Russia began in direct response to staffer George Papadopoulos’s drunken bragging to an Australian diplomat in June 2016, the Nunes memo unintentionally rebutted its own basic argument.

Papadopoulos’s guilty plea confirms the investigators’ judgement.

But no, the so-called “dodgy dossier” compiled by British intelligence agent Christopher Steele didn’t jump-start the FBI  — which never saw his work until September. As Steele, a veteran operative with a sterling reputation in Great Britain, stated all along, some of it was “raw intelligence” that might never be confirmed.

Not that he’s been proven wrong.

Indeed, now that we have Rep. Adam Schiff’s memo rebutting Nunes’s hackwork, it’s clear that many of Steele’s findings were exactly on target. Specifically, Steele reported that International Man of Mystery and former Trump volunteer Carter Page was told during a Moscow trip in July 2016 that the Kremlin had a) collected allegedly compromising information on Hillary Clinton, and b) strongly favored Trump’s election.

Although Page publicly denied meeting with Deputy Prime Minister Arkady Dvorkovich, he also sent the Trump campaign a memo detailing his “private conversation” with the man. Leaks of stolen Democratic National Committee emails via Wikileaks (remember how Trump “loved” Wikileaks during the campaign?) began three days later.

Given those facts, supplemented by independent FBI sources, why should it matter who financed Steele’s investigation? Or what the four GOP-appointed FISA judges who approved surveillance of Page were told about it?

Evidence is evidence in a court of law.

Because, see, that’s the second big problem with the Nunes memo that Sean Hannity predicted would lead to the imprisonment of Hillary Clinton and half of the “Deep State” operatives of the FBI: its sheer, staggering dishonesty.

Contrary to Nunes and his Fox News enablers, the FBI did not conceal the partisan origins of the Steele dossier from the FISA court. Schiff’s rebuttal directly quotes the warrant application stating that the British investigator had been hired indirectly by a political opponent “looking for information that could be used to discredit [Trump’s] campaign.”

By October 2016, when this hearing took place, Trump had only one serious political opponent. Naming her was as unnecessary there as it is here, and might even have been called prejudicial. Besides, FISA judges had the authority to demand more information had they needed it.

Once again, evidence is evidence in a court of law: The FBI had suspected Carter Page of being a Russian agent since 2013.

Indeed, the Schiff memo perhaps inadvertently reveals (in a footnote) that by September 2016 fully five Trump campaign officials were under FBI scrutiny. As of today three have already pled guilty. Page hasn’t yet been charged with anything, which if I were on Team Trump, might make me nervous. Over the years, he’s probably learned the folly of lying to the FBI.

Political stupidity is one thing. But easily exposed dishonesty is dumber still. To anybody smart enough to take shelter from the rain, the Nunes memo and the choreographed #ReleaseTheMemo campaign lie in ruins. Of course that excludes roughly one-third of American voters, who believe anything Fox News says. But two-thirds don’t, and their suspicions can only have been further aroused.

And then there’s this guy: “The Democrat memo response on government surveillance abuses is a total political and legal BUST,” President Trump tweeted the other day. “Just confirms all of the terrible things that were done. SO ILLEGAL!” Characteristically empty bluster.

Meanwhile. here’s just one of Trump’s many problems: Back about the time Papadopoulos and Page were told that the Kremlin had the goods on Hillary Clinton, Donald Trump, Jr. received an email from a pal representing a Russian oligarch the Trumps had befriended during the 2013 Moscow Miss Universe contest.

The message proposed a meeting to share “dirt” on Clinton that would be provided as “part of Russia and its government’s support for Mr. Trump.”

“If it’s what you say it is, I love it,” Don Jr. responded without hesitation.

The meeting took place at Trump Tower on June 16, 2016. Supposedly the senior Trump was kept completely in the dark, presumably because everybody knew he had no interest in dirt about Hillary.

Nevertheless, if I were the president’s lawyer, I’d do everything in my power to prevent his testifying about these matters under oath. 

Trump’s Fool On The Hill: Nunes Makes Mockery Of Russia Investigation

Trump’s Fool On The Hill: Nunes Makes Mockery Of Russia Investigation

Rep. Devin Nunes, California Republican and chairman of the House Intelligence Committee, could not have been clearer in his questioning of FBI director James Comey last week.

NUNES: Director Comey, I remain extremely concerned about the widespread illegal leaks that you just referenced in your—in your testimony. Just for the record though, I wanna get this on the record.

Does the unauthorized disclosure of classified information to the press violate 18 USC 793, a section of the Espionage Act that criminalizes improperly accessing handling or transmitting national defense information?

COMEY: Yes.

NUNES: Would an unauthorized disclosure of FISA-derived information to the press violate 18 USC 798, a section of the Espionage Act that criminalizes the disclosure of information concerning the communication and intelligence activities of the United States?

COMEY: Yes, in addition to being a breach of our trust with the FISA Court that oversees our use of those authorities.

NUNES: Thank you, Director.

The next day, Nunes made an unannounced late-night visit to the White House and spoke with unidentified official (but possibly a former Nunes staffer) about FISA-derived information. Nunes then spoke to reporters and said that he had “confirmed that on numerous occasions, the intelligence community incidentally collected information about U.S. citizens involved in the Trump transition.”

Nunes explained:

“Details about U.S. persons associated with the incoming administration, details with little or no apparent foreign intelligence value, were widely disseminated in intelligence community reporting.”

Trump proceeded to claim vindication for his baseless claim that President Obama wiretapped Trump Tower. Nunes’ statement most definitely did not confirm Trump’s claim, but that was hardly the biggest problem with Nunes’ charge.

The Washington Post noted that, “Nunes’s statements appear to center on surveillance approved by the Foreign Intelligence Surveillance Court, a secretive panel that authorizes the interception of communications of known or suspected agents of foreign powers—such as ambassadors—or terrorism suspects.”

In other words, if Nunes wasn’t making up the whole story, he made an unauthorized disclosure of FISA-derived classified information in violation of the Espionage Act—exactly what he criticized others for doing.

After Nunes sabotaged the strategy of House Republicans to investigate the leaks, not the accumulating evidence, Trump was reduced to demanding that Congress investigate Hillary Clinton’s ties to a Russian uranium deal, which are not the subject of an FBI investigation.

That didn’t work either. When former Acting Attorney General Sally Yates indicated her desire to testify on Tuesday to the Intelligence Committee about how former NSC adviser Michael Flynn dissembled on his pre-inauguration meetings with Russian officials, Nunes abruptly canceled the previously scheduled hearing.

Nunes has disqualified himself as the leader of the Intelligence Committee’s investigation, said ranking minority member Rep. Adam Schiff. On Monday night, he called on Nunes to “recuse himself from any further involvement in the Russia investigation” and all “oversight matters pertaining to any incidental collection of the Trump transition.”

Nunes dismissed Schiff’s call and House Speaker Paul Ryan said Nunes would continue as chairman, though it’s hard to see why the Republicans would want him to.

Nunes implicated himself in a possible violation of the law, destroyed the Republicans’ preferred line of defense, and implicitly admitted that the administration has no rebuttal to Yates’ testimony.

As Colin Kahl, former national security adviser to Vice President Joe Biden, said on Twitter on Monday, “There are a lot of things we still don’t know about Trump-Russia ties. But there are actually a lot of things we DO know.”

Kahl listed 36 points of fact, none of which Nunes seems prepared to respond to, much less rebut.

In the understatement of the week, thePost’s Aaron Blake said “Nunes isn’t very good at this.”

The Nefarious Surveillance State Dangerously Inhibits Self-Expression And A Healthy Democracy

The Nefarious Surveillance State Dangerously Inhibits Self-Expression And A Healthy Democracy

Published with permission from Alternet.

The nefarious brilliance of the surveillance state rests, at least in part, in the fact that it conveys omniscience without the necessity of omnipresence. Since even its verifiable actions are clandestine and shadowy, revealed not through admission but by whistleblowers such as Chelsea Manning, Edward Snowden and Jeremy Hammond, its gaze can feel utterly infinite. To modify an old phrase, just because you’re paranoid doesn’t mean they’re not watching you—especially given that you now have proof. But if you never know precisely when they’re watching or exactly what they’re looking for, can you ever be paranoid enough?

This is, to some degree, the concern of many Americans, according to a new study from Oxford University. The Washington Post reports researcher Jonathon Penney found that Snowden’s leaks about government surveillance had a “chilling effect” on American adults’ internet habits. Penney looked at Wikipedia searches conducted after June 2013, when news of NSA spying programs so thoroughly dominated headlines that 87 percent of Americans became aware of them. In the wake of the story, he found “a 20 percent decline in page views on Wikipedia articles related to terrorism, including those that mentioned ‘al-Qaeda,’ ‘car bomb’ or ‘Taliban.’” The traffic for those pages dropped precipitously after the Snowden files came to light, and continued to slide over the next year, suggesting a “longer-term impact from the revelations.”

“This is measuring regular people who are being spooked by the idea of government surveillance online,” Penney told the Post. “You want to have informed citizens. If people are spooked or deterred from learning about important policy matters like terrorism and national security, this is a real threat to proper democratic debate.”

Those findings bolster those of other recent investigations into how the Snowden revelations have affected, and potentially altered, online behavior. The Post cites a 2015 study by digital rights advocate Alex Marthews and MIT professor Catherine Tucker, who queried internet users in countries around the world about their willingness or reluctance to use certain Google search terms. The researchers concluded that in the post-Snowden era, “users were less likely to search using search terms that they believed might get them in trouble with the U.S. government.”

We’ve long known that the mere suggestion of surveillance can be a powerful, and profitable, determinant of behavior. From Jeremy Bentham’s 19-centuryPanopticon design to the identification of the Hawthorne effect in the 1950s, institutions have made use of real and fabricated all-knowing, all-seeing eyes for profit and productivity, social control and oppression. Until now, there’s been little investigation of the direct link between recent surveillance scandals and how they impact users of new media. These emerging studies prove that just having an awareness of mass surveillance is enough to dissuade ordinary citizens from engaging in perfectly legal actions for fear of unwanted government attention.

For those who require confidentiality to carry out their work, government monitoring is of particular concern. In 2014, the ACLU and Human Rights Watch released a collaborative report based on interviews with lawyers and journalists “covering intelligence, national security, and law enforcement for outlets including the New York Times, the Associated Press, ABC, and NPR.” Those conversations indicated both reporters and their government sources are more fearful of divulging and exchanging information due to new restrictions, including the “Insider Threat Program, which requires federal officials to report one another for ‘suspicious’ behavior that might betray an intention to leak information.” Similarly, widespread government surveillance has eroded many attorneys’ faith in their ability to protect client communications. As a result, members of the press and lawyers have started using costly, time-consuming methods to try to head off government intervention. A few examples are cited in the report, “With Liberty to Monitor All: How Large-Scale U.S. Surveillance is Harming Journalism, Law, and American Democracy”:

[Journalists’] techniques ranged from using encryption and air-gapped computers (which stay completely isolated from unsecured networks, including the Internet), to communicating with sources through disposable “burner” phones, to abandoning electronic communications altogether…As with the journalists, lawyers increasingly feel pressure to adopt strategies to avoid leaving a digital trail that could be monitored. Some use burner phones, others seek out technologies designed to provide security, and still others reported traveling more for in-person meetings. Like journalists, some feel frustrated, and even offended, that they are in this situation. “I’ll be damned if I have to start acting like a drug dealer in order to protect my client’s confidentiality,” said one.

Elizabeth Stoycheff, a Wayne State University professor who focuses on the intersecting points of new media and democracy, recently pointed out that the U.S. now ranks 49th globally in press freedom, according to Reporters Without Borders. “Let that sink in,” Stoycheff advises, writing on Slate. “America, the longstanding beacon of free speech, performs worse than some partly democratic countries in the global south, like Burkina Faso and Niger. Our nation’s whistleblowers and journalists are not adequately shielded from undue prosecution and self-censorship. Nor are our citizens.”

Even the most innocuous online behaviors have been tempered since the NSA’s sweeping data grabs became public. The U.S. Department of Congress polled 41,000 internet-using households about the way privacy and security concerns influenced online activities. Approximately 18 percent named “data collection by [the] government” one of their foremost fears. In a May 2016 press release, the agency states that, along with other trust-eroding issues such as identity theft and fraud-related topics, “45 percent of online households reported that these concerns stopped them from conducting financial transactions, buying goods or services, posting on social networks, or expressing opinions on controversial or political issues via the internet, and 30 percent refrained from at least two of these activities.” The release also notes that “29 percent of households concerned about government data collection said they did not express controversial or political opinions online due to privacy or security concerns, compared with 16 percent of other online households.”

Stoycheff’s own research further bears this last point out. As part of a study released this month, the researcher and her students asked 250 subjects to fill out a survey providing insight into their online habits, political views and personality traits. Participants were presented with a message that indicated, by way of reminder, “their online activities were subject to surveillance by the U.S. government,” followed by a fake (and judgment-neutral) Facebook post about American airstrikes against ISIL. Researchers then asked participants how likely they would be to publicly voice their thoughts on the contents of the post, how they imagined other Americans viewed the topic and their personal feelings regarding government surveillance.

Ironically, those who said they supported mass surveillance (Stoycheff identified these folks as the “nothing to hide” crowd) were actually more likely to self-censor, avoiding expressing any thoughts they felt were out of step with mainstream opinions. “[W]hen these individuals perceive they are being monitored,” she writes in the paper, “they readily conform their behavior—expressing opinions when they are in the majority, and suppressing them when they’re not.” Conversely, those who stated opposition to government surveillance were unaffected by the cautionary message about government surveillance. They posted opinions without regard to how the majority felt, or consistently kept their opinions to themselves altogether. Stoycheff suggested this tendency perhaps exists because the anti-surveillance group consists of people who are “highly educated and vocal about their views regardless of circumstances, and individuals who are so turned off by surveillance that they are unwilling to ever share political beliefs online.”

For the most part, those who took part in the study were less likely to speak out about their feelings if they held minority opinions. That was particularly true for members of racial minority groups. The Washington Post writes that Stoycheff “found that the non-white respondents in her study (who made up 26 percent of participants) were more likely to say that they did not hold majority opinions. That fact suggests that people of color are more likely to suppress their non-majority opinions, as long as they consider government surveillance justified. (The distribution of pro- and anti-surveillance people among non-whites was about the same as it was among whites, with two-thirds in support of surveillance.)”

So not only does the looming threat of government surveillance, real or theoretical, tamp down personal expression, it effectively squelches dissent, promoting a sort of false groupthink that’s frightening for various reasons. What’s more, it further erases the voices of the marginalized, who are already drowned out by those with numbers on their side. All this strikes me as yet another concrete example of the fundamental incongruities between what America says it is and what it does. Add the constant push to expand surveillance powers, and we grow further from that fairy tale ideal all the time.

Kali Holloway is a senior writer and the associate editor of media and culture at AlterNet.

Photo: A police car blocks one of many entrance points into the National Security Administration facility in Fort Meade, Maryland March 30, 2015.  REUTERS/Gary Cameron     

To Protect Our Privacy, Make The FISA Court Act Like A Real Court

To Protect Our Privacy, Make The FISA Court Act Like A Real Court

By Faiza Patel and Elizabeth Goitein, Los Angeles Times (TNS)

The expiration of key surveillance authorities this spring will force Congress to grapple with the sprawling spying activities exposed by Edward Snowden. Defenders of the status quo sound a familiar refrain: The National Security Agency’s programs are lawful and already subject to robust oversight. After all, they have been blessed not just by Congress but by the judges of the Foreign Intelligence Surveillance Court, or FISA court.

When it comes to the NSA’s mass surveillance programs, however, the FISA court is not acting like a court at all. Originally created to provide a check on the executive branch, the court today behaves more like an adjunct to the intelligence establishment, giving its blanket blessing to mammoth covert programs. The court’s changed role undermines its constitutional underpinnings and raises questions about its ability to exercise meaningful oversight.

The FISA court was born of the spying scandals of the 1970s. After the Church Committee lifted the curtain on decades of abusive FBI and CIA spying on Americans, Congress enacted reforms, including the Foreign Intelligence Surveillance Act of 1978. The law established a special court to review government applications to intercept communications between Americans and foreigners overseas for the purpose of acquiring information about foreign threats.

Members of Congress debating the law were concerned about a court that would operate in secret and hear only the government’s side of the argument. The Constitution limits courts to resolving actual “cases or controversies.” This generally requires the presence of two parties with adverse interests, as well as a concrete dispute that allows the court to apply the law to the facts of the case.

Although even the Justice Department agreed it was a “difficult question,” Congress decided that the FISA court procedure was constitutional because of its similarity to regular criminal warrants. There, too, the court hears only from the government, yet constitutional requirements are satisfied because the subject of the search eventually must be notified and may mount a challenge at trial. (The analogy is imperfect, as subjects of FISA surveillance are notified only if legal proceedings result, which is rare in foreign intelligence cases.) And, like their counterparts reviewing criminal warrant applications, FISA judges would apply the law to the facts of a particular case.

Nearly four decades later, the core assumptions about what made the FISA court legal have been upended. Take the court’s role in approving the NSA’s bulk collection of Americans’ phone records. The Patriot Act allows the FBI to obtain business records if it demonstrates to the FISA court that they are “relevant” to a foreign intelligence investigation. As Snowden revealed, the FISA court accepted the government’s argument that all Americans’ records are “relevant” because some relevant records are buried within them. It allowed the NSA to create a massive database of highly personal information without any individualized offer of proof.

A similar abandonment of case-by-case adjudication resulted from the FISA Amendments Act of 2008. These amendments removed the law’s requirement that the government obtain an order from the FISA court each time it collects communications between a foreign target and an American.

Today, when collecting such communications, the government need only implement procedures to ensure the program adheres to broad statutory requirements. The FISA court’s role is limited to approving these procedures; it has no role in judging how the government applies them in individual cases. Given the explosion in global communications, this means that millions of Americans’ phone calls, emails and text messages are collected by the NSA, no individualized court order required.

These judicial activities look nothing like the granting of warrants in criminal investigations. Judges in criminal cases do not issue orders allowing police officers to search any and all houses, on the ground that some surely contain evidence of a crime. Nor do judges secretly approve general guidelines for searching homes, leaving the application of them to the discretion of police officers.

There are good reasons the Constitution charges courts with adjudicating disputes between parties rather than pre-approving broad government programs. It preserves the separate functions of the branches of governments. And it ensures that courts do not take on a role that they are ill-equipped to handle. Time and again, as the Snowden archives reveal, the FISA court was blindsided by how the NSA actually implemented the vast programs the court approved.

Lawmakers have introduced bills to require greater disclosure of FISA court decisions and to establish a public advocate to argue against the government in some cases. Though helpful, these measures would not fully address the fundamental problem: The FISA court simply does not act like a court anymore.

Congress can fix this when it tackles surveillance legislation. Judicial approval should be required each time the executive branch seeks to acquire an American’s business records or communications with a foreign target. Challenging surveillance after the fact should be made easier too. That would require more robust disclosure and a dismantling of the jurisdictional barriers that stymie legal challenges to surveillance.

By shoring up the court’s role as an independent check on the executive branch, these reforms will better safeguard Americans’ privacy and prevent abuse. That was Congress’ original purpose in creating the FISA court. After decades of drift, it’s time to return the court to its constitutional moorings.

Faiza Patel and Elizabeth Goitein are authors of What Went Wrong With the FISA Court and directors of the Liberty and National Security program at the Brennan Center for Justice. They wrote this for the Los Angeles Times.

Photo: Penn State via Flickr