Mark Zaid, JFK and Trump

[Douglas Caddy]

National Security Wiretap System Was Long Plagued by Risk of Errors and Omissions

The F.B.I.’s intelligence wiretap powers are at a crossroads after a damning report about the surveillance of a former Trump adviser. And the flaws may be systemic.

 

The F.B.I. and the FISA court are working on an overhaul of the national security surveillance application system.Credit...Jason Andrew for The New York Times

By Charlie Savage and Adam Goldman

• Feb. 23, 2020 The New York Times
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WASHINGTON — In the 1990s, F.B.I. agents hunting for a Russian mole zeroed in on a C.I.A. official as their main suspect as they tried to determine who had sold secrets that had led to the deaths of American spies. When they sought court permission to wiretap him, they kept quiet about facts that cast doubts on their theory.

But the mole turned out to instead be one of the F.B.I.’s own, Robert P. Hanssen, and the agents were later exposed for cherry-picking evidence against the innocent C.I.A. official in their surveillance applications.

That little-known aspect of the notorious Hanssen case illustrates the risk of dysfunction in national security wiretapping, one of counterintelligence agents’ most powerful tools in fighting terrorism and espionage. Now, that defect has surfaced again. The F.B.I.’s flawed applications to monitor a former Trump adviser in the Russia investigation, Carter Page, has prompted a new cycle of scandal revealed in a damning report from the Justice Department’s inspector general.

The problems may be part of a broader pattern in other applications that never receive the same intense scrutiny, according to interviews with more than two dozen current and former F.B.I. agents and Justice Department officials who have worked with national security wiretaps. The system is vulnerable, they said, to lower-level agents suppressing or overlooking evidence that weakens their case when they seek permission to conduct surveillance.

 

The F.B.I. and the court are already working on an overhaul, and lawmakers have vowed to fix the problems uncovered by the inspector general. But for Congress, agreeing on what needs fixing will be difficult.

The F.B.I.’s misuse of its powers under the Foreign Intelligence Surveillance Act, or FISA, has been politicized to a degree it never was in the Hanssen case, where an inspector general’s discovery of the failures attracted little notice.

President Trump and his supporters have long embraced a theory that Mr. Page was a victim of a high-level political conspiracy. The inspector general report did not confirm that narrative, instead finding different — yet still serious — problems.

Some of the president’s closest allies in Congress will influence any potential overhaul efforts, and whether they will act based on that narrative or instead focus on the systemic problems with surveillance is an open question.

On Wednesday, the House Judiciary Committee, led by Representative Jerrold Nadler, Democrat of New York, will mark up a bill that is expected to become a vehicle for Congress to weigh in on broader surveillance issues. He has been negotiating with Representative Adam B. Schiff, Democrat of California, who leads the Intelligence Committee, and with Republicans on his own panel.

 

The timing is driven by the pending expiration of three investigative powers unrelated to the Page wiretap issues, including the F.B.I.’s ability to collect business records for an espionage or terrorism case. The draft bill would extend those powers while ending legal authority for a defunct system that gave counterterrorism analysts with the National Security Agency access to logs of Americans’ phone calls.

But the bill, according to people familiar with negotiations over the draft, would make other adjustments that dovetail with the inspector general report — like expanding when FISA judges should appoint outsiders to critique the government’s arguments. Lawmakers could also legally require the F.B.I. to be candid with the FISA court and to correct errors.

 

By contrast, Senator Lindsey Graham, Republican of South Carolina and the close Trump ally who leads the Senate Judiciary Committee, is focused on further scrutinizing the Russia investigation. Recently, Mr. Graham requested interviews with 17 law-enforcement officials who were subjects of the inspector general investigation.

“Somebody,” Mr. Graham said in an interview, “has to pay a price.”

But similar flaws with surveillance have surfaced before, underscoring that the problems may be systemic rather than unique to the Page applications, current and former officials said.

At the F.B.I., nobody gets credit for investigations that go nowhere, said Robert S. Litt, a former national security prosecutor and general counsel of the Office of the Director of National Intelligence during the Obama administration. That cultural reality creates the risk that investigators will slant FISA applications to more easily secure a judge’s approval.

The bureaucratic problem is not limited to the FISA process, Mr. Litt said, pointing to a scandal years ago over F.B.I. forensics experts overstating their findings in courtroom testimony.

Still, the extra secrecy surrounding surveillance shuts out potential checks. For example, defense lawyers get to scour criminal wiretap applications for problems, creating an incentive for investigators to be scrupulous. But defense lawyers do not get to see FISA applications.

 

“Because the court operates in secret, you are lacking one of the levels to prevent a bad actor that otherwise exist,” Mr. Litt said.

In addition, the C.I.A. tightly limits access to information about its sources. That means when evidence from those sources goes into a wiretap application, fewer law enforcement officials know details that might help evaluate their credibility.

 

 

In the Russia investigation, the inspector general found, the C.I.A. told the F.B.I. that Mr. Page had talked with the agency about his contacts with Russian officials over the years. Those disclosures could have made his pattern of communication look less suspicious. But the F.B.I. agent who received a C.I.A. memo about the issue did not accurately pass along that information to his colleagues, so no one told the court.

F.B.I. agents are also racing against a clock with FISA wiretaps — good for 90 days — which can also leave them open to confirmation bias, former officials said.

Once a wiretap is in place, Justice Department lawyers charged with seeking its renewal begin nagging F.B.I. agents to identify new facts gleaned from the wiretap that could help justify continuing it. But the lawyers are less insistent on finding facts that might instead undercut their suspicion, former officials said.

Congress enacted FISA in 1978 to regulate national security wiretapping after scandals from the J. Edgar Hoover era. The law created a special court that today oversees more than 1,000 such applications each year.

 

But investigators have repeatedly misled judges over the years, documents and interviews show. When such episodes have come to light, the Justice Department has blamed errors by or miscommunication with lower-level officials.

In 2000, the Justice Department confessed to errors about cooperation between criminal and national security investigators in F.B.I. affidavits submitted for 75 applications related to terrorism investigations, according to a declassified FISA court opinion.

After a follow-up review uncovered even more mistakes, the FISA court’s presiding judge, Royce C. Lamberth, barred an F.B.I. agent who had signed some of the affidavits, Michael Resnick, from appearing in front of the court again.

The Justice Department also imposed changes, including strengthening fact-checking for draft applications.

But the damage to the career of Mr. Resnick, who died in 2011, may have been more effective than any policy response, said James A. Baker, who oversaw the FISA process for the Justice Department in that era and was general counsel at the F.B.I. at the time of the Page wiretap.

“The thing that Lamberth did to Resnick put the fear of god in all these people,” Mr. Baker said. “They didn’t want this to happen to them.”

 

 

In 2003, an inspector general report about the Russian mole case uncovered an additional bombshell. Examining why the F.B.I. had spent so long investigating the wrong suspect and failed to pursue alternative avenues, it found that agents suppressed “crucial” evidentiary weaknesses as they sought a court order to wiretap the innocent C.I.A. official, Brian J. Kelly.

 

The inspector general at the time, Glenn A. Fine, said this cherry-picking kept other officials from being able to evaluate the mole investigation and make an earlier course correction.

The Hanssen report called for Justice Department lawyers to more closely oversee F.B.I. agents preparing wiretap applications. Mr. Baker used that recommendation to push through a then-secret further tightening of the rules for preparing FISA applications in 2006, including requiring closer scrutiny of the credibility of confidential sources.

The Page report criticized an F.B.I. agent for ignoring that very procedure as part of half a dozen personal failings that included not passing on the information from the C.I.A., singling the agent out as “primarily responsible for some of the most significant errors and omissions.”

It identified this person only as Case Agent 1. But he is Stephen M. Somma, a counterintelligence investigator in the F.B.I.’s New York field office, people familiar with the Russia investigation said. The F.B.I. declined to comment.

The report did not find evidence that Mr. Somma or his immediate supervisors, whom it also faulted, were politically biased — as opposed to apolitical explanations like incompetence or confirmation bias. (Voter registration records show that a 49-year-old New York man with Mr. Somma’s name and middle initial is a Republican.)

But the inspector general, Michael E. Horowitz, rejected as unsatisfactory such officials’ explanation that they were busy and referred them for disciplinary review. He also referred one official for criminal investigation over a narrower but more egregious act: altering a C.I.A. email he showed to a colleague, during the third renewal of the Page wiretap, in a way that kept the previous failure to disclose the agency’s relationship with Mr. Page from coming to light.

 

That official, Kevin Clinesmith, a lower-level F.B.I. lawyer who had written text messages expressing opposition to Mr. Trump’s policies and writing “viva le resistance,” has resigned.

 

 

The F.B.I. has already begun making changes in response to the inspector general’s findings and subsequent demands from the head of the FISA court, Judge James E. Boasberg, like expanding forms and checklists to force agents to focus on mitigating evidence.

A FISA expert appointed by Judge Boasberg to help him evaluate the bureau’s proposed changes, David Kris, has said they do not go far enough and recommended that a supervisor in the field, not a headquarters official, sign factual affidavits.

Denis Brady, a retired F.B.I. senior agent who worked with FISA applications, went further, suggesting case agents themselves should have to sign the documents.

“That makes you responsible,” Mr. Brady argued. “You bring it down to the field office, where the people doing the work are responsible for it long term. They are not just doing a job to check a box and move up the ladder. That’s the fundamental problem.”

Many civil libertarians favor permitting defense lawyers with security clearances to go through case files to look for problems with FISA applications on the rare occasions a target is later prosecuted.

 

The inspector general’s office has begun a broader audit of unrelated applications, but for now has said it is focused on looking for factual errors in wiretaps applications targeting Americans — not the harder-to-detect problem of omissions.

Whatever adjustments are made, perfection may remain elusive.

Last month, the F.B.I. promised Judge Boasberg to work harder to avoid errors. When the bureau’s general counsel, Dana Boente, signed the memo, he did not notice that whoever drafted it had misspelled his name.

Kitty Bennett contributed research.

[Joe Bauer]

Douglas, do you think you personally have ever been wiretapped or surveilled even more?

If so, who would you think would do this and why?

If you don't want to comment on this subject I understand.

And by the way, thank you for your supportive post of me personally a few days ago.

[W. Niederhut]

13 hours ago, Cliff Varnell said:

Hillary 2205 Bernie 1846 in earned delegates.

        These final results were skewed in Hillary's favor by multiple DNC sleights of hand.  Among other things, Hillary Clinton was awarded the lion's share of the DNC "super delegates" in Philadelphia-- and we all know the backstory about Wikileaks, Debbie Wasserman-Schulz's resignation, and the DNC shenanigans to manipulate the primaries and caucuses in 2016.

      2020 is looking even worse, in terms of blatant DNC corruption.

[Cliff Varnell]

22 minutes ago, W. Niederhut said:

        These final results were skewed in Hillary's favor by multiple DNC sleights of hand.  Among other things, Hillary Clinton was awarded the lion's share of the DNC "super delegates" in Philadelphia--

She won 359 more delegates *before* the convention. 

Quote

 

and we all know the backstory about Wikileaks, Debbie Wasserman-Schulz's resignation,

Please tell us what the DNC did to get 3.5 million black voters to back Hillary instead of Bernie.

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and the DNC shenanigans to manipulate the primaries and caucuses in 2016.

There were an awful lot of coin flips in caucuses that went Clinton’s way — but enough to account for 3.5 million more Clinton votes? Bullshed.

Quote

      2020 is looking even worse, in terms of blatant DNC corruption.

Which is why Bernie may have this wrapped up in the first week in March.

The Republican establishment couldn’t stop Trump in ‘16 and the Dem establishment can’t stop Bernie now.
 

 

Edited February 24, 2020 by Cliff Varnell

[W. Niederhut]

Cliff,

    If Bernie wins the nomination this year, it won't be because of the DNC, but in spite of it.  As for 2016, what is your understanding about why Debbie Wasserman-Schulz resigned in disgrace?

[Cliff Varnell]

Julian Assange lawyer tells court: After pardon fell through, Trump administration resorted to ‘extortion’

https://www.rawstory.com/2020/02/julian-assange-lawyer-tells-court-after-pardon-fell-through-trump-administration-resorted-to-extortion/

Assange wouldn’t come out and claim Seth Rich was the source, and he wouldn’t state that Russians didn’t hack the DNC. So Trump is wreaking his revenge.

[Cliff Varnell]

9 minutes ago, W. Niederhut said:

Cliff,

    If Bernie wins the nomination this year, it won't be because of the DNC, but in spite of it. 

I think I’ve made my agreement with that clear.

Quote

As for 2016, what is your understanding about why Debbie Wasserman-Schulz resigned in disgrace?

Because the WikiLeaks e-mail release revealed what the savvy among us understood all along — the DNC was pulling for Clinton.

Again, what did the DNC do to get 3.5 million black folks to pick Hillary?

Edited February 24, 2020 by Cliff Varnell

[W. Niederhut]

40 minutes ago, Cliff Varnell said:

I think I’ve made my agreement with that clear.

Because the WikiLeaks e-mail release revealed what the savvy among us understood all along — the DNC was pulling for Clinton.

Again, what did the DNC do to get 3.5 million black folks to pick Hillary?

   

      One of the ways that Wasserman-Schulz and the DNC directly sabotaged Bernie in 2016 was to limit the number of debates, and to schedule the few debates in a way that limited public exposure.

       But, it's somewhat ironic that you would brag about the pro-Hillary black vote in the 2016 primaries, in light of the low voter turnout for Hillary in black communities in the November 2016 Presidential election.

[James DiEugenio]

Typical NY Times reporting.

They did not report the Carter Page CIA interviews inaccurately.

They cut that part out.

[Cliff Varnell]

3 minutes ago, W. Niederhut said:

   

      One of the ways that Wasserman-Schulz and the DNC directly sabotaged Bernie in 2016 was to limit the number of debates, and to schedule the few debates in a way that limited public exposure.

Okay. Legitimate beef. Do you think that accounts for the 3.5 million more votes she received?

3 minutes ago, W. Niederhut said:

       But, it's somewhat ironic that you would brag about the pro-Hillary black vote in the 2016 primaries, in light of the low voter turnout for Hillary in black communities in the November 2016 Presidential election.

“Brag”? I’m just stating the statistics.

One of the main reasons for low voter turnout in communities of color is systematic voter suppression by the GOP. How many blacks waited in line for 5 or 10 hours? How many went to vote and found they’d been purged from the rolls?

When James Comey re-opened the FBI investigation into Clinton 11 days before the election it turned cable news into a non-stop Hill bash. How many people were so sick and tired of hearing about her e-mails they stayed home?

[James DiEugenio]

Every once in awhile, Tucker Carlson says something that, geez, I have to agree with.  I never agreed with O'Reilly.

 

https://www.foxnews.com/opinion/tucker-carlson-russia-isnt-attacking-our-democratic-system-our-own-ruling-class-is?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A foxnews%2Fopinion (Internal - Opinion - Mixed)&utm_content=FaceBook

[James DiEugenio]

Read this and you may understand about what happened in Iowa.  Its why people are calling Petey a Trojan Horse:

 

https://thegrayzone.com/2019/12/30/coup-plotters-cia-agents-mayor-pete-endorsers/?fbclid=IwAR1q89ZEAprnvOCIBbBC_m9ImCrC8UxE2J39bNkjqy4Ay7OzEtiDDiecdmE

[W. Niederhut]

Mehdi Hasan published a good article* at The Intercept today about the pervasive disinformation in the MSM about Bernie Sanders.

It also speaks to the racial demographic issue that Cliff has mentioned from the 2016 Democratic primaries-- i.e., the meme that Bernie doesn't appeal to black voters.  (See Hasan excerpt below)

I think we all know where this particular MSM argument is going for next week.  When Biden ekes out a long-expected win in South Carolina, we will see a chorus of MSM headlines about how Bernie doesn't do well with black voters, etc.

*  Finally, Can We All Agree? Everything We Were Told About Bernie Sanders Was Wrong

https://theintercept.com/2020/02/24/bernie-sanders-electability/

February 24, 2020

***

"He has a problem with people of color. The longstanding argument that Sanders struggles with black and Latino voters, that his supporters tend to be white, male “Bernie Bros,” is perhaps the most pernicious and dishonest anti-Sanders argument of them all. After three contests, it is clear that the Jewish senator from Vermont is now heading a multiracial, multifaith coalition of both Democrats and independents. In Nevada, this past weekend, he is estimated to have won a whopping 70 percent of the Latino vote.

Meanwhile, among black voters nationally, Sanders is now in a virtual dead heat with Biden who, we were told, had a “lock” on this particular minority community. Is it any wonder, then, that in South Carolina, often described as Biden’s “firewall” state because black voters make up at least 60 percent of the Democratic electorate, Sanders has been able to slash the former vice president’s lead from 29 points last month to just 5 points last week?

South Carolina now looks more like the border wall than a firewall."

Edited February 24, 2020 by W. Niederhut

[Cliff Varnell]

46 minutes ago, W. Niederhut said:

Mehdi Hasan published a good article* at The Intercept today about the pervasive disinformation in the MSM about Bernie Sanders.

It also speaks to the racial demographic issue that Cliff has mentioned from the 2016 Democratic primaries-- i.e., the meme that Bernie doesn't appeal to black voters.  (See Hasan excerpt below)

In 2020 Bernie appeals to black voters — more than Biden in one recent poll.

https://morningconsult.com/2020/02/24/bernie-sanders-rising-post-nevada-polling

This is where he went wrong in 2016 (please ignore Bloomberg ad): notice how white this ad is:

 

Quote

I think we all know where this particular MSM argument is going for next week.  When Biden ekes out a long-expected win in South Carolina, we will see a chorus of MSM headlines about how Bernie doesn't do well with black voters, etc.

According to my crystal ball Bernie wins So. Carolina.

Quote

[Kirk Gallaway]

If you have a realistic sense of where things really are. There's no point in being crushed or continually surprised at the antics of the media establishment. Some of of us actually get a perverse joy at the media reaction to the Sanders surge. When you learn  detachment , it's actually a healthy thing and can keep you young.