Charlie Savage

Good morning from the E. Barrett Prettyman courthouse in Washington DC, where opening arguments are set to begin in the Sussmann-Durham case. Packed media room so will likely be plenty of people live tweeting.

One of the cybersecurity researchers who developed the Alfa Bank data and analysis and had been on the prosecutors witness list, Manos Antonakakis, has invoked Fifth Amendment so won’t testify, DeFilippis said. /2

DeFilippis wanted an FBI agent to talk about how the FBI wondered if DNS data was spoofed as part of its inquiry (reached no conclusion); judge rules it can’t get into that as part of his earlier ruling they can’t raise that spectre if no evidence Sussmann had reason to doubt. /3

After opening arguments, Marc Elias, Sussmann’s former partner at Perkins Coie and and the general counsel of the 2016 Hillary Clinton campaign, will testify today and there will likely be some discussion of Steele dossier materials. /4

Atmospheric note: Though it doesn’t look like he will talk, John Durham is at the prosecutorial table. Unfortunately can’t see him on the cc tv feed angle. (Being in media room means we can use laptops & be online, plus see faces of lawyers rather than backs of heads.) /5

Deborah Shaw, member of the Durham team, begins opening arguments. Tells the jury that Sussmann was a privileged lawyer with connections who lied about having no client in order to use the bureau as a political tool for his clients, Clinton campaign and a technology executive./6

Notable: while describing the night-before text in which Sussmann indisputably told Baker he was not coming on behalf of any client, Shaw says it was the alleged reiteration of that statement in person the next day that is the charged crime. /7

Shaw addresses “the elephant in the room” – tells jury their feelings about Russia, Trump, Clinton can’t play a role in the case. This is about “our FBI” which should not be used as a tool by anyone, Republicans or Democrats./8

Shaw says this was about a look a leak and a lie. Look – Joffe had researchers look for derogatory info about Trump and Russia in DNS data. Leak – Sussmann tried to get NYT to write about it. Lie – Sussmann brought it to FBI but lied about having no client. /9

Shaw tells jury the FBI knew Sussmann was representing Democrats they were the victim of a hack (contends if they knew he was allegedly repping campaign on Alfa Bank they might not have quickly met with him). She doesn’t tell them Russia the perpetrator of that hack. /10

Wrapping up she again calls Sussmann privileged because he could walk into FBI and get meeting with Baker. Whether Republican or Dem, whether love Trump or hate him, we should all agree that FBI should not be used for political ends, she says./11

Bosworth says Sussmann didn’t lie and wouldn’t. He worked alongside FBI, former prosecutor had a clearance. Joffe is no mere tech exec but global DNS expert, and FBI confidential informant. When Joffe brought him the info, he took it seriously./12

Bosworth says was a time when questions about Trump’s connections to Russia were swirling. The plan was to take this new weird thing public and they took it to NYT. That’s what campaign wanted, get article that hurts Trump and helps them. Campaign didn’t want FBI meeting./13

Bosworth says Sussmann wanted to give the FBI heads up so they wouldn’t be caught flat footed when article came out, and FBI shut down the article. So govt theory is nonsensical./14

Bosworth emphasizing the Russian hack of DNC Sussmann got hired for. Says Sussmann not involved in analysis of the Alfa Bank data, didn’t know about spam server, not in position to understand “gobbledygoop” of DNS data. /15

A key factual/interpretive thing comes into view: Shaw said Sussmann went to FBI bc frustrated NYT was delaying the story – to sex it up and create urgency. Bosworth says Sussmann believed story’s publication was imminent when went to FBI – to give heads up of what was coming./16

After talking about subsequent calls that week between Baker and Sussmann, Bosworth talks about Baker’s bad memory, has testified different things at different times. The March 2017 meeting notes discussing client. “That’s reasonable doubt if there ever was.” /17

Bosworth tries to poke other holes. Sussmann was the last lawyer Dems would have sent if trying to conceal since FBI knew he was a Dem/DNC/campaign lawyer. Campaign didn’t direct or want him there; Joffe gained nothing. Source didn’t matter anyway; FBI didn’t even ask./18

Bosworth wraps up. 20 minute break./19

First prosecution witness, FBI supervisory special agent David Martin, is sworn in. He is cyber crime specialist. Shaw is walking through his background and experience./20

Martin is explaining to the jury what DNS data is, laying out some basic background. I’m not going to live tweet much of this part./21

Shaw wraps up a dry Q&A with Martin on topics like DNS data and recursive servers and Tor exit nodes. Bosworth opens by getting him Martin to agree that this complicated stuff that has taken him a lot of education and training to become an expert in./22

Starting with the premise that DNS data doesn’t tell you for sure whether a computer actually communicated with another one, he gets Martin to agree that to actually find out if it happened, you’d need steps like search warrants, subpoenas — i.e. stuff FBI can do./23

Bosworth gets Martin to agree that Joffe is a respected DNS for-real expert and was an FBI confidential source, which he did. Shaw comes back to ask him if he knew Joffe was terminated as a source for cause, which he didn’t. That’s it for Martin./24

Now we will hear from FBI supervisory special agent Scott Hellman who oversees cybercrime investigations. DeFilippis is now leading the questioning, for now just laying groundwork and basics./25

Hellman took custody of the thumb drives of Alfa Bank-Trump-related DNS data Sussmann provided to Baker. Discussion of chain of custody. Baker gave to Peter Strzok, and then along to less prominent names. /26

I think Hellman said he didn’t learn where Baker had gotten the data from. He and his supervisor analyzed the data and compared their assessment to a narrative that came with it./27

Hellman explains he and his supervisor were skeptical. They looked at the data & the white paper that accompanied it & disagreed with the methodology/conclusions. Didn’t think it made sense that a secret channel would use a server with Trump’s name on it, connecting directly./28

Hellman says they thought it was “conveniently coincidental” that the supposed secret coms had started three weeks before the inquiry described in the white paper. And they thought Russia had more sophisticated means to communicate secretly if it wanted. /29

Hellman says in terms of technical analysis, he would do the same steps regardless of knowing where the data came from. But…/30

…In terms of what level of investigation to open, he would want to know who provided the data and with what motivation to figure out how much he trusts the “facts” & whether to gather more info. (He didn’t open investigation bc no hacking; Chicago FBI did – a full, he said)./31

DeFilippis wraps up. Break for lunch until 2 p.m./32

We’ve been back a bit. Before jury came in, there was discussion of Joffe being terminated as a confidential source in 2021. The reason was he should have given Alfa Bank info to his handler, not the FBI general counsel. Judge told prosecution to stay away from termination. /33

Sean Berkowitz, another lawyer for Sussmann, is cross-examining Hellman. Hellman thought it was weird Baker didn’t tell him where the data came from. (Someone above him in the chain didn’t either.) Berkowitz shows internal FBI messages showing others knew it was from Sussmann./34

When Hellman started reading the material he texted a colleague & said the more he reads it, it feels a little 5150ish. Hellman testifies that means he wondered if the person who wrote it was suffering from a mental disability./35

Berkowitz brings up Sept 21, 2016, text message to Hellman from his supervisor saying they had been asked to write up a summary of their analysis of the DNC report, suggesting contemporaneous knowledge it had a Dem source. Hellman disclaims memory of seeing that in realtime./36

Berkowitz gets Hellman to say that DeFilippis recently suggested to him that “DNC report” was maybe just a typo for “DNS report.” Hellman doesn’t think it’s likely he just missed at the time that there was knowledge it was DNC. /37

Berkowitz established that Hellman’s not a DNS expert and his look at the data/analysis was about a day. Got Hellman to say his technical steps would have been the same if knew where data came from, but Hellman says he would have noted that in his report. DeF back now. /38

DeF asked Hellman about rules for opening investigations in the DIOG. Hellman doesn’t remember the acronym. (It’s Domestic Investigations and Operations Guide.) Berkowitz is annoyed at asking Hellman about this topic since H’s team didn’t open one. (Counterintelligence did.) /39

DeF uses Hellman to establish that confidential human sources are supposed to give info to the FBI via their handlers. Berkowitz comes back with email to establish that Joffe did apparently give info on this topic in Sept 2016 via a SA Tom Brasso who was apparently handler./40

That’s it for Hellman. In a break now, back at 4. Not clear who next witness will be but hot mic picks up judge suggesting this will be over today 4:30 or 4:45./41

We’re back. Next witness is Steve De Jong, a Neustar employee whose group does DNS internet services and hosting for companies. DeF questioning about what Neustar does. /42

DeJong says Joffe & GA Tech researcher Antonakakis asked for searing Neustar’s DNS data for long list of Trump & Alfa domains. He pulled logs back to June ’16. (Recall Hellman finding it “conveniently coincidental” that traces seemed to begin just 6 weeks before the study.)/43

Bosworth briefly questions De Jong. Establishes that Joffe is respected DNS expert and worked with government/FBI, won FBI award. Sussmann had nothing to do with pulling and analyzing the DNS data. And we’re done for the day./44

Cleanup: Tomorrow will pick up w/ Deborah Fine, Laura Seago, Marc Elias, Tom McMahon, and then Jim Baker if they get to him which seems ambitious. Prosecution no longer intends to call Robby Mook but defense will; he has asked if can go early bc has trip planned./45

Conventional news article:

Originally tweeted by Charlie Savage (@charlie_savage) on May 17, 2022.

Another development for in-the-weeds enthusiasts of the Durham-Sussmann case: the defense has a new filing with a bunch of handwritten notes of a March 6, 2017, FBI meeting attended by Baker at which there was knowledge that Sussmann had a client. /1

https://pacer-documents.s3.amazonaws.com/36/235637/04519212888.pdf

The defense appears to be planning to use this to suggest that Sussmann at the meeting itself or early subsequent phone calls made clear that he had a client, making things murkier. And to point out that Durham apparently didn't show these notes to Baker to refresh his memory. /2

The previous notes ("d/n say who client was") were from Mary McCord, the head of DOJ national security division. These are from Tashina Gauhar, a top intelligence oversight DOJ official: /3

The were also trying to figure out Trump's outlandish tweet accusing Obama the "bad (or sick) guy" of having wiretapped Trump Tower during the campaign, whether there was anything that could be a garbled version of./4

The notes attached to the filing also show a snapshot of Trump-Russia investigation generally at that point in time, including discussion of Manafort, Flynn, Page, Papadopoulos, etc./5

I want to study all this more, but for now:/end
Exhibit A is Tashina Gauhar: https://pacer-documents.s3.amazonaws.com/36/235637/04519212889.pdf
Ex B is Mary McCord https://pacer-documents.s3.amazonaws.com/36/235637/04519212890.pdf
Ex C is the calendar invite showing who was there
https://pacer-documents.s3.amazonaws.com/36/235637/04519212891.pdf
Ex D is Scott Schools

https://pacer-documents.s3.amazonaws.com/36/235637/04519212892.pdf

P.S. I think this is them puzzling over the Louise Mensch / Heat Street thing

Originally tweeted by Charlie Savage (@charlie_savage) on May 9, 2022.

*****

The judge in the Sussmann-Durham case has issued a ruling about a number of evidentiary issues. May write about this later, but for in-the-weeds enthusiasts here's my preliminary read of the takeaways: /a

https://pacer-documents.s3.amazonaws.com/36/235637/04519212781.pdf

1 – Emails among researchers with Joffe can’t come in
2 – Emails from FusionGPS to press can come in
3 – Joffe "VIPs" email can’t come in
4 – Joffe “was going to get a cybersecurity job” email can’t come in
/b (cont'd)

5 – Joffe "what would a security expert/non DNS expert think of this white paper" email can come in
6 – Anderson/Priestap notes can come in only if Baker’s memory is challenged and then Anderson/Priestap testify they don’t remember the conversations (I think)
/c (cont'd)

7 – What Sussmann said to CIA in February 2017 can come in
8 – How the Yotaphone data was gathered/analyzed and what the CIA did with it and thought about it can’t come in
/d (cont'd)

9 – No order to immunize Joffe so he'll agree to testify as defense witness, but prosecutors are forbidden from raising whether Joffe’s role in the collection
effort was somehow “objectionable” or illegal so judge says maybe he'll choose to testify w/out immunity
/e (cont'd)

Notably, judge declined to hold "a time-consuming & largely unnecessary mini-trial to determine the existence & scope of an uncharged conspiracy to develop and disseminate the Alfa Bank data" & portrayed that theory as foggy.
f/end

Originally tweeted by Charlie Savage (@charlie_savage) on May 7, 2022.

I attended a pre-trial hearing in the Durham-Sussmann case this afternoon at which a litany of evidentiary issues were discussed, many without resolution. It was far too weedy/incremental for a general-reader news article, but here’s my impression of takeaways for enthusiasts. /1

Team Durham (lead prosecutor Andrew DeFilippis) will call Perkins Coie’s managing partner to discuss a 2018 Perkins statement that Sussmann’s FBI meeting was on behalf of a client with no connection to the Clinton campaign. Sussmann apparently helped draft that statement. /2

One chunk of evidence will be Sussmann’s testimony before the House Intel Cmte. Judge Cooper said prosecutors can ask whether Sussmann mentioned the Clinton campaign & on cross defense can point out that no one asked him about it. Not clear (to me) who the witness will be. /3

DeFilippis says prosecutors no longer intend to make an issue of Sussmann deleting certain data from his law firm work phone before turning it in. (They had accused him of violating a firm preservation policy; defense then dug up the actual policy showing it was no violation.) /4

A defense lawyer said they don’t intend to introduce evidence alleging political bias on behalf of the Durham investigation. /5

Judge Cooper said he would exclude, as hearsay and duplicative evidence, a Clinton campaign tweet about the Alfa Bank suspicions. /6

A defense lawyer revealed – I think this is new – that “weeks” before Sussmann’s February 2017 CIA meeting on the Yotaphone suspicions, an FBI agent had recommended closing the bureau’s inquiry into the Alfa Bank suspicions. /7

The defense had asked for portions of the indictment to be struck from the record. Judge Cooper said it was not his practice to show the jury the indictment at all, so that took care of that. /8

Re Perkins Coie emails whose headers Durham obtained, but whose contents were withheld under attorney-client privilege, the judge 1st said that prosecutors could show them to the jury but not tell the jury that the reason for the redactions was a privilege claim. But … /9

…then a defense lawyer complained that showing the jury large amounts of black would be prejudicial and invite speculation, and the judge seemed to suggest that they could be reformulated to avoid that. It was not clear to me whether this was a ruling or just a musing. /10

Re defense request for immunity for Joffe, the judge was reluctant to go there and reluctant not to take at face value Durham’s claim that he remains at risk of prosecution even though the CIA meeting was >5 yrs ago. …more/11

Notably, DeFilippis mentioned a govt contracting fraud law w/ a longer statute of limitations. …. more 12

It remains unclear (to me) whether the judge will ask for an in camera review of the basis for prosecutors telling Joffe that he remains at risk (meaning he’d take the 5th & not testify about his understanding of whether Sussmann went to the FBI *on his behalf* as a client.) /13

On notes by two of Jim Baker’s FBI colleagues (Bill Priestap and Tricia Anderson) to whom he spoke after Sussmann, both reflecting no client, judge said won’t admit them as official evidence but will still likely permit them to be read to jury under a hearsay exception. /14

On the emails among the cybersecurity researchers as they developed the Alfa Bank DNS data suspicions, which Sussmann was not a party to, the judge signaled he is reluctant to let them in. …more/15

DeFilippis argued those should be admissible as statements by conspirators or participants in a joint enterprise. Judge said his reading of the cases is that’s never happened when there’s no charged conspiracy & the alleged joint enterprise was not a crime. But no ruling yet. /16

DeFilippis acknowledged that Chris Steele is not going to be a witness (since he’s not in the US). Similar arguments regarding to what extent Steele & dossier stuff can be brought in under the prosecution’s joint enterprise theory. Also no ruling yet. /17

There’s some evidence that still needs to undergo Classified Information Procedures Act (CIPA) substitution process. Defense doesn’t have the clearances yet to get into the SCIF and look at it. Judge warned that the clock is ticking. (Trial starts mid May.)/18

DeFilippis sought clarity that Judge Cooper will let discussion of CIA/Yotaphone meeting in, but set parameters on it. Judge affirmed.

So judge will issue a written ruling sorting through some of these; others may be decided at the trial depending on how things go.
/19&end

Originally tweeted by Charlie Savage (@charlie_savage) on April 27, 2022.

The Nation commissioned me to write a review-essay about the Afghanistan War and the book The Afghanistan Papers: A Secret History of the War by Clint Whitlock of The Washington Post. The magazine has now published it in its April 4/11 issue under the headline “Mission Creep: What are the lessons of the United States’ 20-year war in Afghanistan?”

Here is a public link to read it.

Reality check for some Trump critics: The Jan. 6 Committee filing’s vague hand gesture in the direction of possible crimes or fraud by Trump in a dispute over a subpoena is a far cry from a road map for criminal prosecution based on the same evidence.

In this 🧵, I will explain why the Jan 6 Cmte filing does not, in itself, mean there has been a breakthrough for criminally prosecuting Trump. For those who wish to understand the world as it is: /1

The Jan 6 Cmte filing says Trump may have violated two statutes, both centered on actions for which lots of evidence is pretty well understood and is not in dispute: In public and private, Trump pressured Pence not to certify the election results./2

For that to be a crime, Trump had to know that there was no lawful basis for Pence to do what he was demanding. Lawyers in WH (and pretty much everywhere) agree there was no such lawful basis. Problem: John Eastman told Trump that Pence did have that authority./3

Does John Eastman telling Trump that he interpreted the law differently than, say, Pence’s counsel, raise a reasonable doubt about whether Trump knew he was asking Pence to do something that was illegal? Ponder that while considering this:/4

The Jan 6 Committee filing was not a criminal referral asking DOJ to prosecute Trump. Rather, it arose in a very different context: civil litigation over a subpoena./5

Specifically, the committee has subpoenaed Chapman University to get documents John Eastman wrote related to his convos with Trump about a stolen election and Pence’s power. Eastman sued to block it from complying, invoking attorney-client and attorney-work-product privileges./6

The committee is trying to get a judge to agree that it can enforce its subpoena anyway under an exception to those privileges for material that relates to a crime or fraud. That’s the context in which the committee invoked the possibility of a Trump crime. Read on: /7

Is it legitimate for the committee to say there may have been a crime, given that Eastman’s advice muddies the water about whether Trump knew he was asking for something illegal? Well, the legal standards in this context are much easier to meet./8

To win what it is initially asking for – to have the judge privately examine the docs – the cmte need only convince the judge that it has a “good faith” reason to be believe that such a private viewing “may reveal” evidence that the crime-fraud exception applies./9

& to defeat Eastman’s attempt to block its subpoena, the cmte need only convince the judge that the “preponderance of the evidence” suggests the conversations involved a crime — or even just “common law fraud,” meaning deceit that could be the subject of a civil lawsuit./10

Those standards leave room the committee to achieve its goal – to get Eastman’s papers – even if the judge has a LOT of doubt about Trump’s mental state when he pressured Pence. Preponderance of the evidence = 51% chance it was a crime, 49% chance it was not. /11

Compare that to a criminal trial in which prosecutors must convince all 12 people on a federal jury — verdicts have to be unanimous — that there was no reasonable doubt Trump knew he was asking Pence to do something unlawful, notwithstanding Eastman’s advice to the contrary./12

This is all based on the evidence as understood today, and laid out in the committee’s filing. Perhaps that will change. Maybe they get Eastman’s papers and there is a smoking gun in them that he and Trump knew it was all bullshit! But this is the world as it exists today./13

Originally tweeted by Charlie Savage (@charlie_savage) on March 4, 2022.

I am saddened to hear that @walterdellinger has died. We nerded out over legal issues many times over the years. A running joke was that I was the only one who was more impressed about the fact that he had led the Office of Legal Counsel than served as acting solicitor general.

I looked up articles I wrote since joining the NYT in 2008 that cited Walter Dellinger. Here’s a record of the sorts of things we talked about: /1

In 2008, he argued a case before the Supreme Court about the scope and limits of Second Amendment gun rights. /2

In 2009, when congressional Dems & the ABA criticized Obama for continuing to use signing statements deeming parts of bills unconstitutional as he signed them into law – a practice they had called on Bush to stop – Dellinger defended the practice. /3

Also in 2009, when Justice Stevens retired from the Supreme Court, Walter had this to say about Obama’s search for a nominee to succeed him. /4

Soon after, for an article on the nomination search that focused on Elena Kagan and Judges Diane Wood and Merrick Garland (oops, that seat went to Sonia Sotomayor!), Walter shared this thought with NYT readers./5

In another article related to the nomination search that focused on comments Obama had made about liberal courts having overreached in the past, which alarmed progressives, Walter said this. /6
(aside: maybe we quoted him too often for this storyline)

In 2011, when Obama nominated Don Verrilli to be solicitor general, Walter said this./7

Later in 2011, when I uncovered that Obama rejected the view of DOD’s general counsel and OLC, and gone with other admin lawyers’ views re the legality of continuing to bomb Libya after the War Powers Resolution’s 60-day clock expired, Walter said this: /8

In 2012, when Obama nominated Sri Srinivasan, Walter’s partner at O’Melveny and Myers, to be an appeals court judge on the DC Circuit, Walter said this:/9

In 2013, when Obama decided to bomb Syria for using chemical weapons but also decided to ask Congress for authorization first, Dellinger said he approved of going to lawmakers rather than acting unilaterally./10

In 2014, when Obama decided to bomb ISIS as it was sweeping across Iraq – controversially claiming he already had authorization under the 2001 AUMF against 9/11’s perpetrators since ISIS had started off as a faction of Al Qaeda, Walter was supportive:/11

In 2018, when the Trump OLC released a memo asserting that Trump had the power to attack the Syrian government (for using chemical weapons) w/out going to Congress, I wrote about an earlier war powers memo Walter had written as head of the Clinton OLC./12

In 2019, during a government shutdown in a standoff between Trump & the Dem Congress over funding for a wall, I wrote about the possibility of emergency powers as a face-saving way out that would not require either side to back down. Walter said this:/13

Also in 2019, when a judge ruled that Trump had to tape testimony for a trial over a lawsuit brought by protesters who said that his private security guards had assaulted them on a public sidewalk in front of Trump Tower, Walter said this:/14

A few days later, Pelosi announced an impeachment inquiry over Trump’s efforts to coerce Ukraine’s president into announcing that the Bidens were under criminal investigation. I wrote an explainer about how the process works that included this from Walter:/15

In Sept 2020, when RBG died, giving Trump & the GOP Senate an opportunity to replace her with a conservative, I co-wrote a story about Obama’s unsuccessful efforts to nudge her into retiring earlier. It included this episode about Walter and Breyer. /16

This year, Walter was among a handful of outside lawyers Biden asked his White House counsel to consult about whether he could lawfully extend a Covid evictions moratorium — knowing it would later lose in court but relieving political pressure: /17

I last quoted him 2 months ago, when Biden’s bipartisan Supreme Court reform commission, of which he was a member, approved its report. I ended the piece with Walter looking down the road to a time long after all of us will have passed away./18

Walter and I also spoke many other times where I was just trying to understand something disputed or complex about the law. Walter was always generous with his time for that sort of thing.

RIP @walterdellinger

Originally tweeted by Charlie Savage (@charlie_savage) on February 16, 2022.

With The New York Times — and in one case, with my colleague Mark Mazzetti — I filed two new Freedom of Information Act cases this week. I thank the Times’ newsroom lawyer, David McCraw, and our annual First Amendment fellow, Jess Hui, for their representation in this litigation.

The case with Mark is asking the Defense Intelligence Agency for documents that would show whether it has been purchasing Domain Name System (DNS) logs or Internet traffic data from commercial brokers, and if so what it has been doing with them particularly in regards to searching for data associated with Americans.

Context: Last January I wrote about the DIA’s disclosure (in unclassified correspondence with the office of Senator Ron Wyden, Democrat of Oregon) that it has purchased smartphone app locational data from brokers and sometimes queried it, without a warrant, for information about an American’s past movements; that was interesting in part because in a landmark 2018 case called Carpenter, the Supreme Court held that the Constitution requires the government to obtain a warrant to compel phone companies to turn over location data about their customers, but the government has concluded that this ruling does not apply to locational data acquired through voluntary commercial transactions. Meanwhile, there is growing awareness of how DNS and/or netflow logs can be used to identify which websites or servers a particular user has accessed or which users are visiting a particular website or server, and debate about what the rules should be for government access to that kind of data. (This attention is mainly due to a legislative fight over whether to prevent the government from using Section 215 of the Patriot Act to gather Internet traffic logs, which Mr. Wyden has played a leading role in, but the power of DNS logs has also been in the news due to the Trump-era special counsel John Durham’s investigation into suspicions raised by a group of data scientists in 2016 about odd DNS data suggesting hidden communications between servers for the Trump Organization and a Kremlin-linked Russian bank.) In April, Wyden and other lawmakers introduced The First Amendment is Not For Sale Act to address commercial sales to the government of data pertaining to Americans’ communications. In May, Joseph Cox of Vice’s Motherboard reported on a letter from Wyden to the Pentagon revealing that the lawmaker had asked whether the Defense Intelligence Agency was buying commercially available DNS and netflow data, but that it had provided answers in a form he was not permitted to make public.

The other new FOIA case is seeking an updated (post 2015) set of the F.B.I.’s internal incident reports that it produces whenever an agent fires a weapon outside of a shooting range. The reports reconstruct a narrative account of what happened and assess whether the agent’s decision to pull the trigger complied with the F.B.I.’s policy, which allows deadly force only if agents fear that their lives or those of others are in danger. They can also reflect any disciplinary action or discussion of changes to training and procedures arising from the scrutiny.

Context: I’ve been periodically requesting and publishing these reports for years, and after having to fight a FOIA lawsuit for the first set, I was able to get updated tranches without litigation for some time. However the bureau has ignored my most recent request, so we are again suing to compel their disclosure in compliance with the information act. Notably, the first set of documents I obtained showed that the F.B.I. had deemed its agents faultless in at least 150 incidents in which they had shot someone dating back at last 20 years, including deeming a “good shoot” a case where it paid $1.3 million to an innocent man an agent shot in the jaw. After we began running stories on this pattern, the F.B.I.’s internal process seems to have gotten tougher, finding at least two shooting incidents to not have complied with its policy. But I’ve not obtained any such reports since 2016, so this lawsuit aims to make public what has happened since then.

I live-blogged on Twitter the Senate Judiciary Committee’s hearing on closing Guantanamo today. The biggest takeaway was what didn’t happen: the Biden administration didn’t send any government witness, in keeping with its low-key (and not particularly active) approach to its nominal policy goal of closing the prison.

Although the revitalized Periodic Review Board has been steadily adding names to the list of those recommended for transfer, Biden has not revived a position of State Department envoy to negotiate transfer arrangements. To date, the administration has transferred just one detainee. The current breakdown is 39 detainees remaining, of whom 12 have been charged or convicted before the tribunals system, 13 have been recommended for transfer with security assurances, and 14 are on the untriable/unreleasable list. (Check out the recently overhauled New York Times Gitmo Docket tracker.)

Anyway, there wasn’t enough concrete news at the hearing for a newspaper story, but here is the summary converted from a roughly 30-post Twitter thread:

***

At Senate Judiciary Committee oversight hearing on Guantanamo, Senator Durbin expresses disappointment that the Biden White House and the Garland Justice Department haven’t responded to his letters on the topic & the Biden administration declined to send a witness to the hearing.

Senator Grassley, the top Rep, also flags that no one from DOJ/State/IC came to defend the Biden admin’s plan to close Gitmo and says he’s not sure there is any. Having a policy goal without a plan “invites disaster” he says, comparing it to the messy withdrawal from Afghanistan.

Senator Feinstein, recalling the CIA torture report she oversaw as former chair of SSCI, says the isolation of Guantanamo invites abuse and makes no sense to her to house prisoners there.

Brig. Gen. John Baker, the retiring chief defense counsel in the military commissions system, calls the tribunals a failure that need to be brought to an end as quickly as possible through negotiations. Too late to make them work, too many errors already baked in.

Colleen Kelly, whose brother Bill was killed on 9/11 and who cofounded a 9/11 families group, expresses frustration with failure of attempted military commissions prosecution. Asks for plea agreement that would provide answers & closure even tho it would mean no death sentences.

Cully Stimson, who was top DOD detainee policy/operations official in 2nd term of Bush admin, says early abuses at Guantanamo were wrong but treatment has been good since 2nd term of Bush admin. Suggests Obama/Dems lacked courage of convictions when failed to close it in 2009-10.

Maj. Gen. Michael Lehnert (ret.), the first Gitmo prison commander, says Americans have forgotten Gitmo but enemies still use it as recruiting tool. Says uncharged detainees should be transferred – saying risk of recidivism reduced bc they are aging and sickly – and /1

and the cases of the 12 charged ones should be brought to an end through negotiated plea deals, perhaps in civilian court via video conference hearings, even though it would mean taking death penalty off the table. Death just functions to make them martyrs anyway, he said. /2

Jamil Jaffer, a conservative national security lawyer, makes case for keeping Gitmo. War on terror not over. Releasing detainees risks they could become leaders in a foreign terrorist group and energize it. Bringing them to a prison on US soil risks giving them more legal rights.

Katya Jestin, the volunteer lawyer for Majid Khan, says commissions just exist to keep CIA torture in the shadows and continuing to litigate in the tribunals system is a road to nowhere. Says the detainees still uncharged, 20+ years after 9/11, should be transferred.

Under questioning from Durbin, Generals Baker and Lehnert reiterate their point of view status quo — keeping commissions going, keeping Gitmo open — is worse than the risk of changing course.

Under questioning from Durbin, Katya Jestin describes the military jury’s handwritten note urging clemency for her client Majid Khan and expressing disgust/shame over his torture by the US government. Story by @carolrosenberg

Under questioning from Grassley, Jamil Jaffer discusses the risk that released Guantanamo detainees might rejoin a terrorist group. Says “the terrorist threat today is worse specifically because we withdrew from Afghanistan”

Under questioning from Grassley, Stimson explains why many remaining detainees cannot be charged with a crime under civilian court standards. Jaffer warns the SCt might rule they have extra rights on domestic soil & there’s a low but not zero chance they could be ordered freed.

Feinstein doesn’t ask questions but says it costs taxpayers $13 million per year for each of the 39 remaining detainees to house them at Gitmo. Calls an isolated “‘criminal justice system’ in quotes” wrong and unAmerican and says she hopes the votes are finally there to end it.

Graham says it’s “nuts” to talk about releasing people when the Taliban control Afghanistan again. The war continues. Torture is wrong but indefinite law-of-war detention is lawful. “It’s absurd to criminalize a war.” Spars w/ Baker over whether detainees received fair process.

Graham says the need is to keep indefinite law of war detention somewhere. It doesn’t have to be at Gitmo. He doesn’t care where they are housed, it could be in Illinois. (That’s a reference to Obama’s plan to bring them to a prison in Thompson, Ill., which Congress blocked.)

Senator Whitehouse thanks Durbin for keeping pressure on the Department of Justice. Says the original sin of detainee problems was “inappropriate” post-9/11 DOJ Office of Legal Counsel memos by DOJ (Yoo-Bybee era) that the Bush DOJ itself disavowed once they became public.

Under questioning by Cornyn, Jaffer says despite the “precipitous withdrawal” from Afghanistan, the larger war on terror continues and therefore the legal ability to detain captured enemies indefinitely and without trial continues.

Stimson says that moving detainees to a different prison but continuing to hold them in indefinite detention is just changing Gitmo’s zip code. Supports transfers with adequate security assurances but says some have been inadequate. (Doesn’t specify examples of what he means.)

Colleen Kelly says her family has different opinions about Guantanamo but everyone agrees the attempt to prosecute 9/11 defendants has gone on too long and the victims and country needs closure.

Under questioning by Tillis, Stimson says closing Gitmo “can be done.” Logistics would be easy with just one planeload. Legal (bringing to domestic soil prison) raises a lot of open questions. Political is the toughest. Congress has imposed impediments and would have to help.

Jaffer acknowledges that Guantanamo has imposed reputational harm on the United States but says what about the reputational harm of Biden withdrawing from the Afghanistan War and abandoning allies there.

Under questioning by Hirono, Jestin says plea agreements can be reached quickly if there is a will. In the Khan case, they negotiated with an experienced DOJ prosecutor who had been detailed to DOD. Recommends getting DOJ prosecutors more involved.

Under q by Hawley re legal rights detainees might get in a US soil prison, Jaffer says some evidence against them may not be admissible (chain of custody) & Stimson says they could file tort lawsuits against their captors (tho also says Congress could enact a law to block that)

Blackburn says nothing has changed to suggest the detainees are any less dangerous than when captured (she doesn’t address the PRB process). With Jaffer, talks about how the end of the Afghanistan War and the Taliban return to power means greater terrorism danger.

Under questioning by Klobuchar, General Baker says commissions have been delayed by D.I.D. — death penalty issues, intrusions by government into atty-client confidentiality, and discovery (classified evidence). Says negotiated plea agreements can solve.

Under questioning by Klobuchar, General Lehnert says Biden needs to put someone in charge of closing Gitmo in the White House or NSC with the authority to drive the bureaucracy to get transfers done, and federal courts using videoconference hearings should handle plea agreements.

Ted Cruz says Obama and now Biden just want to free terrorists.

After Cruz & Jaffer talk about how 1/3 of ex-Gitmo detainees return to terrorism, Durbin says those #s are misleading–>overwhelmingly Bush-era transfers before 2009 standards. Of those transferred after 09, just 5 percent (10 guys, 2 of whom dead) are “confirmed” as re-engaging.

Durbin also points out it was Trump who made a deal with the Taliban promising that the US would withdraw from Afghanistan by the summer of 2021. Thanks the witnesses and reaffirms his support for closing Guantanamo. Gavels the hearing closed.

P.S. Here’s the ODNI data on re-engagement by ex-detainees, showing tilt to the pre-2009 transfers. (Bush admin made bulk repatriations to allies like Saudi Arabia w/out the individualized vetting Obama admin put in place. Also perhaps some aged out as they got older.)

Originally tweeted by Charlie Savage (@charlie_savage) on December 7, 2021.

With the New York Times, I have filed a new lawsuit against the United States Central Command seeking public disclosure of surveillance footage related to the tragically botched Aug. 29 drone strike in Kabul. Specifically, the lawsuit — filed under the Freedom of Information Act — seeks aerial footage starting five minutes before the drone started tracking the white car and ending five minutes after the attack.

This strike is a promising subject for a FOIA case because it has attracted an unusual amount of public interest and the government has already declassified an unusual volume of information about it. Thank you to the NYT newsroom’s lawyer, David McCraw, and our new annual First Amendment Fellow, Jess Hui, for representing me in this litigation.

The military carried out the strike amid its massive and chaotic evacuation operation at the Kabul airport as the Taliban swept into control of Afghanistan. Three days earlier, a suicide bomber claimed by ISIS-K had blown himself up within the desperate crowd, killing at least 182 people, including 169 Afghan civilians and 13 American service members. The previous day, the Pentagon had announced a drone strike that it said killed ISIS-K’s planners, but everyone was bracing for more carnage. That Sunday morning, the military announced a second drone strike that it said had killed additional would-be ISIS-K suicide bombers headed to the airport. But soon, chatter began to arise that a civilian family, including children, had been killed in that second drone strike.

While acknowledging there had been collateral damage, the Pentagon initially maintained the strike had been “righteous” while putting out more information: there had been intelligence that attackers would be using a white Toyota and the one it had been following had gone to a suspected ISIS-K safehouse and then engaged in suspicious behavior. It also said there had been a secondary explosion that was consistent with bombs being in the car. But as my colleagues at The Times later showed in an excellent reconstruction using all kinds of video footage from Afghanistan — a rare opportunity since drone strikes seldom occur in urban settings where there are cameras all over the place — the driver of the targeted car was an innocent aid worker whose apparently suspicious behavior had been ferrying around water containers, not bombs. The Pentagon eventually acknowledged that it had made a tragic mistake: no ISIS-K fighters had been killed, and it now said a propane tank was most likely the cause of a secondary explosion.

UPDATE Jan. 19, 2022: Through this litigation, we obtained 25 minutes of surveillance footage from two Reaper drones.

***

I want to take this opportunity to respond as well to some controversy over a Twitter posting I made right after the AP moved a story about the initial announcement. When the Pentagon said that it had managed to kill ISIS-K bombers bound for the airport, I had found it weird: how to account for a world in which, in just a few days, the American military had gone from being blind to an ISIS-K suicide operative walking up to the airport gates, to apparently being able to figure out both where the plotters were and even in which car the next wave of would-be attackers were coming? I had a thought that I considered cynical: had the Taliban – at war as well with ISIS-K, a conflict that would continue after the Americans left – begun sharing intelligence about the shared enemy from its own spies, a possibility the government would doubtless try to conceal as awkward and humiliating? I typed the following into a Twitter post as a comment on the AP headline: “The US clearly has a remarkable intelligence line of sight into ISIS-K right now.” Some people immediately picked up on the insinuation lurking behind my statement. An Arizona-based criminal defense lawyer wrote: “Yes. My question is, is that assisted by the Taliban, or purely US capability?” I replied: “Based on nothing, I harbor the same theory.” A former F.B.I. counterterrorism agent also responded to my original tweet with the same thought: “And maybe some really good partners, or enemies providing insight,” and a few other Twitter users whom I did not know responded to that posting with comments like “the enemy of my enemy” and “Going to be really awkward once people realize that targeting data is coming from the Taliban.”

In retrospect, obviously, the premise of this whole line of thought was off: there had been no sudden dramatic improvement in intelligence.

After the reports of civilian casualties began to emerge, some internet trolls like Glenn Greenwald had fun denouncing my initial tweet for uncritically taking the Pentagon’s claim at face value. This leveraged hindsight understanding and omitted the context of the above discussion, but that said, it’s a best practice to wait a few days to see what reports emerge from the ground before attempting to assess a drone strike — a lesson I know well from years of drone policy coverage and yet overlooked in this instance. To borrow a phrase my opinion-side colleague Ross Douthat used in a column about his thoughts watching the “shambolic” exit from Afghanistan, those of us who speculated that there might be an uncomfortable origin to the the apparent improvement in intelligence thought we were being cynics — but we actually weren’t cynical enough.

I posted the below thread in response to this tweet from Marcy Wheeler (@emptywheel) promoting a blog post that mainly critiqued an article that has gotten supporters of WikiLeaks and Julian Assange excited. Her post included an aside about “propaganda” from “Pulitzer Prize winning NYT reporters” that turned out to link to this June 16 post ostensibly about me, entitled “Charlie Savage’s Obfuscations in the Service of Claiming Julian Assange is a Journalist.” I was not previously aware of this earlier post, which is all mixed up. I never claimed Assange was a journalist; in fact, I keep going out of my way to explain that whether or not he is one is irrelevant to the press freedom issues raised by the Justice Department’s decision, in its precedent-setting superseding indictment, to expand on the hacking conspiracy charges it had already brought against him by adding Espionage Act charges for the his journalistic-style acts of of soliciting and publishing classified information. In case anyone reads that post and googles to see if I responded, I’m going to preserve the thread here.

—-

Marcy, I followed the link to your June 16 rant about my analysis of the significance of the expansion of the original hacking conspiracy case vs Assange, adding charges for the act of soliciting & publishing secrets, which I hadn’t seen at the time. You are confused. /1

Most importantly, your headline and the thrust of your piece is false. I never pronounced Assange a “journalist.” I instead discussed “his journalistic-style acts of soliciting and publishing classified information.” Grasping the distinction is crucial to understanding this. /2

What matters about the decision to expand the original charges against Assange is the precedent of criminalizing such *activity.* It doesn’t matter whether he counts as a journalist, a point I make over and over. /3

1st Amendment protections are not tied to being a journalist, so the risks *of the Espionage Act charges* against Assange don’t turn on whether he was one. Weirdly you state this yourself deep in the piece, without seeming to grasp that this insight negates your argument. /4

Perhaps this is just another example of you wanting to ride a pre-existing hobbyhorse – in this case, wanting to detail what DOJ said about Assange and hacking – and using something I said as a peg to artificially sex it up (dumb NYT!) even though it doesn’t actually fit. /5

But the linkage is artificial & incoherent. Had DOJ stuck with the hacking conspiracy charges in the original and second superseding indictment, the Assange case would not matter so much for press freedoms issues, as I laid out in a piece analyzing the original indictment. /6

P.S. This has little to do with anything @matthewamiller said in 2013. I have been writing since 2010 about deliberations inside DOJ re wanting to charge Assange/WL but grappling with the problem that traditional news outlets like the NYT also sometimes publish govt secrets./end

• 

Originally tweeted by Charlie Savage (@charlie_savage) on June 28, 2021.

—-

Marcy stormily replied to several of the tweets in this thread. We went back and forth a couple times, creating spin off threads, but those subsequent messages aren’t showing up in WordPress’s automated unroll thread feature and added scant value anyway. People can click to Twitter check those strands if they want to read them.

---

UPDATE: posted without further comment