February 7, 2018

Posted by orrinj at 9:04 PM


Friends of the Court: A Suggestion for the FISA Court on the Nunes Memo (Benjamin Wittes, February 7, 2018, LawFare)

In last week's special edition of the Lawfare Podcast, I had the following exchange with David Kris, the country's leading authority on FISA, concerning whether there was any way to make public whatever discussion takes place between the FISC and the government on this matter:

Wittes: [I]f I were at either DOJ in your former position, that is head of NSD, or at the [FBI], I'd be looking at this and saying "wait a minute, the House Intelligence Committee isn't ultimately the actor who gets to decide whether our warrant application was defective. That job belongs to the FISC." My temptation would be to file a public document with the FISC saying, "Of course the Justice Department and the FBI is prepared to answer any questions or provide any information that the court might need in response . . . to this disclosure by the president and by the House intelligence committee," and allow the FISC to use that if it so chose to maybe issue a one sentence order that says, "no thanks. We're good"--or else to give the FISC the opportunity, by filing that, to say something in public. I'm wondering how plausible you think this is?

Kris: I think that's quite plausible. But first I think it is very likely that the government was updating the court across these four renewals that have been disclosed . . . as to the changing nature of the situation . . . and I would further imagine that now, the government is either on its way to the court or thinking about how to go to the court to officially advise the court of this memo (which I'm sure the judges have read in the newspaper). . . . So I would expect first that the government has provided notice updates as things evolve, which is the normal thing to do, and that they will now have to go to the court and . . . have some formal vehicle for acknowledging this and giving the court an opportunity to weigh in. The part that I don't know, and I think is part of a larger challenge here, is whether and to what extent any or all of that, either the fact of the interaction with the court and the fact of the court's response, or even the substance of it will be made public. This is part of a conundrum that the government is in here, similar to one that it's faced in, . . . for example, the Snowden situation, where certain information is made public and then in order to provide a fuller picture, the government is forced to exacerbate the classification problem and release further information that would be classified and it has to pay a price then in sources and methods. . . . That balance between those competing interests puts the government in a little bit of a box. . . . It may be easier to solve in correspondence with the court, and I can imagine ways the court could go public with a statement that didn't compromise sources and methods, so there may be a way out of it here. But it's part of a larger problem that can't be ignored whenever these types of situations come up.

Sophia Brill, writing on Lawfare Tuesday, was thinking along similar lines. Her post outlines several procedural mechanisms by which the court could publicly issue an order addressing the Nunes memo's claims. Such a disclosure would be highly unusual, she acknowledges--but "the FISC is uniquely positioned to resolve this question [of whether the allegations in the Nunes memo are true] while still avoiding the hemorrhaging of additional classified information."

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Posted by orrinj at 5:32 PM


Dissecting the Grassley-Graham Letter's Criticisms of the Carter Page FISA Application (Ryan Goodman, February 7, 2018, JustSecurity)

There are three ways in which the Grassley-Graham letter goes even further than the Nunes memo in its criticisms of the FBI's handling of the FISA application.

First, the letter states that the FISA application did not include any "meaningful corroboration" of the Steele dossier allegations against Page, and that Comey's response to the criticism in closed session was not to refer to other forms of corroboration, but instead to depend on Steele's general reliability. It is hard to know how to evaluate the two senators' claim of lack of "meaningful" corroboration, since there may have been ample other evidence about Page's recent relationships with Russian agents. By late October 2016, when the FISA application was submitted, Page's unusual trip to Russia while a member of the Trump campaign was well known. The Nunes memo itself seems to suggest that around this time, the Steele dossier was at least "minimally corroborated." And, in response to the release of the Nunes memo, Rep. Adam Schiff (D-Calif.)stated, "Only very select parts of what Christopher Steele reported related to Carter Page were included within the application, and some of those things were already subject to corroboration."

What's more, Page's own testimony to the House Intelligence Committee, which occurred two months before the senators' letter, corroborated parts of the Steele' dossier. For more on this, read Natasha Bertrand's "Carter Page's testimony is filled with bombshells--and supports key portions of the Steele dossier." Since Grassley and Graham's ultimate claim involves concerns about Steele's credibility, one would have expected them at least to address the subsequent corroboration by Page, even if not other aspects of the dossier that may have also been validated (see John Sipher's two articles at Just Security). That said, the FBI may have been unaware of some of the corroborating details about Page in late October when DOJ applied to the FISA court.

The Grassley-Graham memo also includes an important line that the FBI itself came to the determination that "[Steele's] reporting is credible." We should all remember that is now a part of the public record. Grassley and Graham attempt to tar the entire Steele dossier with the suggested that James Comey told Congress the dossier is "salacious and unverified." That is the same foul committed by the Nunes memo, and smacks of bias. Here's the Pulitzer Prize-winning PolitiFacts ruling:

"Comey's careful phrasings in four portions of his testimony indicate that he meant only that portions of it were "salacious and unverified." The memo twists Comey's words in an effort to leverage his stature to undercut the dossier."

Second, the Grassley-Graham letter states that "the bulk of the application consists of allegations against Page that were disclosed to the FBI by Mr. Steele and are also outlined in the Steele dossier. The application appears to contain no additional information corroborating the dossier allegations..." Note that the second sentence does not say the dossier failed to contain additional information that implicated Page, only that it did not contain additional information corroborating the specific allegations in the Steele dossier. Nevertheless, it is important that the senators claim that the Steele dossier and other information that Steele provided the FBI constituted "the bulk of information" in the original application (elsewhere they describe the Steele information as "a significant portion" of the FISA application).

But what about that forest? What's publicly known about Page suggests there may have been ample reason for the Justice Department to seek a surveillance warrant and for federal judges to authorize and reauthorize it. Nothing in the letter changes that fact. Indeed, not even Gowdy is now willing to say that the initial FISA order was unjustified.

Gowdy--sig. drafter of #NunesMemo--now can't even say surveillance was unjustified.

Q: "Was that justified, that surveillance?

Gowdy: "We'll never know because the application contained three parts" including "other information they had on Carter Page" pic.twitter.com/p1to43kpKP

-- Ryan Goodman (@rgoodlaw) February 4, 2018

That's an especially important sign since Gowdy says he was "intricately involved" in  drafting the Nunes memo and Nunes gave Gowdy the exclusive responsibility of viewing the underlying classified information on behalf of the Republican members of the House Intelligence Committee. Why could Gowdy not say the surveillance warrant was unjustified? Because of "other information they had on Carter Page," Gowdy told CBS's Face the Nation. The senators' letter itself is also inconsistent in this regard. Having said the Steele dossier constituted "the bulk of information" in the original application, the letter refers elsewhere to "a total of four FISA applications relying on the dossier to seek surveillance of Mr. Carter Page, as well as numerous other FBI documents relating to Mr. Steele."

Posted by orrinj at 5:10 PM


Court upholds $25 million settlement in suits against Trump University (Bob Egelko, February 6, 2018, SF Chronicle)

A federal appeals court in San Francisco upheld a $25 million settlement Tuesday to students of the now-defunct Trump University, who said they were charged up to $35,000 and promised the secrets of real estate success but were given little more than sales pitches to take more seminars.

The settlement of two class-action suits and a third suit by the state of New York against Donald Trump's school was reached six weeks after the 2016 presidential election and was approved by U.S. District Judge Gonzalo Curiel of San Diego.

President Trump has agreed to pay the settlement, but after Curiel refused to dismiss the suit in July 2016, Trump, as a candidate, called the Indiana-born judge a "hater" and a Mexican who was biased against him because of his plan to build a wall on the U.S.-Mexico border. [...]

The settlement will allow the students to recover about 90 percent of what they paid, said their lawyers, who did not charge them a fee and will not share in the payment. 

Posted by orrinj at 5:08 PM

IN FOR A PENNY, IN FOR THE POUNDING (profanity alert):


For weeks, Donald Trump has been souring on his Chief of Staff John Kelly because of his controlling ways and rising public profile. And now Kelly is in the midst of a bonafide crisis, one that exacerbates the president's own #MeToo problems. On Tuesday, Kelly strongly defended White House Staff Secretary Rob Porter against disturbing allegations, first published in the Daily Mail, that he abused his ex-wives. Kelly's decision to back Porter has left many people inside the White House angry, two sources with knowledge of the matter said. On Wednesday afternoon, Porter resigned. Axios reported Kelly wanted Porter to "stay and fight."

General Kelly has already shown us what he is.

Posted by orrinj at 5:05 PM


Israel Fired On Syrian Military Positions, Damascus Claims (JTA, 2/07/18)

The Syrian military accused Israel of firing on its positions near Damascus, calling it a "new Israeli aggression."

"This morning, Israeli warplanes fired several missiles from Lebanese airspace on one of our military positions in the Damascus countryside," Syria's army said in a statement broadcast on state media. 

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'Grassroots' Media Startup Redfish Is Supported by the Kremlin (CHARLES DAVIS, 02.01.18, Daily Beast)

Redfish, a Berlin-based media collective, launched with a promise to deliver "radical, in-depth grassroots features," with professional graphics, filed everywhere from Eastern Europe to South America. Its first report, on a fire at a public housing development in England that killed over 70 people, has been praised by Vice, as a "fantastic example of amateur community-produced media."

But Redfish does not appear to be as independent and community-based as its branding suggests. Its reports are the product of an in-house team of staff correspondents and producers, most of whom last worked for Russian government media. And by the time that documentary on Grenfell Tower was discovered by Vice, it had been airing for weeks as an "exclusive grassroots report" on RT, Moscow's state-supported television network.

Posted by orrinj at 4:42 AM


Gorka Joins Outlet That Published "Ten Things I Hate About Jews" (Eli Clifton, February 7, 2018, LobeLog)

Sebastian Gorka's role as a deputy assistant to President Donald Trump ended in August 2017. A series of investigative articles tied him to Vitezi Rend, a Hungarian group the State Department characterized as collaborating with the Nazis. He'd also endorsed a racist and anti-Semitic militia in Hungary in a 2007 television interview.

A favorite of Beltway institutions like the Foundation for Defense of Democracies and the Heritage Foundation before he joined the Trump campaign, Gorka became the president's attack dog on cable news interviews. He eventually departed the White House under questionable circumstances: he says he resigned, other sources say he was fired.

Now he has drifted to the fringes of the alt-right with his new job as a contributor at The Rebel, an online Canadian publication with a long history of anti-Semitism, extremism, and Islamophobia.

Posted by orrinj at 4:30 AM


Trump immigration plan could keep whites in U.S. majority for up to five more years (Jeff Stein and Andrew Van Dam February 6, 2018, Washington Post)

President Trump's proposal to cut legal immigration rates would delay the date that white Americans become a minority of the population by as few as one or as many as five additional years, according to an analysis by The Washington Post.

The plan, released by the White House last month, would scale back a program that allows people residing in the United States to sponsor family members living abroad for green cards, and would eliminate the "diversity visa program" that benefits immigrants in countries with historically low levels of migration to the United States. Together, the changes would disproportionately affect immigrants from Latin America and Africa.

Posted by orrinj at 3:35 AM


Macron to visit Corsica as demands for greater autonomy gain weight (Angelique Chrisafis, 6 Feb 2018, The Guardian)

The question of what status should be granted Corsica - an island of 330,000 people that lies closer to Italy than mainland France - has long vexed Paris but has been brushed under the carpet by successive French presidents.

The 40-year Corsican "national liberation" campaign of bombing and violence targeting French infrastructure, ended in 2014 when armed separatists announced an "end to military operations". But since then, Corsican nationalists seeking greater autonomy from the French state have had their best-ever performance in elections.

The Pè a Corsica (For Corsica) alliance has two-thirds of the seats in the regional assembly.