If you’ve seen movies or TV shows about the FBI and CIA, you’re familiar with the expression, “That’s on a need-to-know basis.” Traditionally, even members of the intelligence community weren’t necessarily entitled to a given piece of information. That changed on January 12, 2017, through modifications in Executive Order #12333, just as President Obama was on his way out the door. (Goodness, those first three weeks in January were a flurry of behind-the-scenes activity.)
Even at the time, there was interest in Obama’s rationale for doing this. THE ATLANTIC ran a piece by Kavey Waddell called “Why Is Obama Expanding Surveillance Powers Right Before He Leaves Office,” which suggested, perversely, that it was somehow to keep incoming President Trump from “encroaching even further on civil liberties.” What a joke; little did leftists know then that it was not Trump but the ‘deep state’ bureaucracy left in place under Obama that would be encroaching on civil liberties big-time in the months to come.
Thanks to Dan Bongino for citing this piece and taking us all down memory lane. Certainly there were questions at the time on both sides of the aisle about why Obama would do this just as he was leaving the White House. But recent revelations about the phony “Trump-Russia” investigation and the runaway unmasking of names connected with Trump are shedding light on this in a way never dreamed of in January of 2017.
What Obama did with Executive Order #12333 was to finalize new rules that allowed the National Security Agency to share information combed from its vast international surveillance capability with the 16 other intelligence agencies. These agencies would be able to apply for access to raw NSA intelligence, and their analysts would then be able to sift through this information unencumbered, BEFORE IMPLEMENTING REQUIRED PRIVACY PROTECTIONS. Before this, the NSA was required to apply those protections BEFORE sending information to other agencies.
The piece in THE ATLANTIC is an interview between Waddell and Susan Hennessey, managing editor of LAWFARE and previously an attorney in the NSA general counsel’s office, a person who actually believed --- I kid you not --- that this rule change was put in place to help discourage TRUMP from violating civil liberties. She said the regulations, coming at that time, might serve as “a huge source of comfort.” Waddell agreed: “...While the changes may subject more Americans to warrantless surveillance, the last-minute timing of the announcement actually might have been designed to cut future privacy losses.” Huh?
Read the article and note the way Hennessey "minimized" (ha) the effect that these rule changes would have on privacy. She reassured us that other agencies would have to “provide justification” for why they needed access to the data. (Yes, we’ve seen since then how that requirement has held them in check.)
Hennessey said she wasn't concerned that Americans could be caught up in warrantless searches from being caught up in the raw intelligence that was shared. “Look, she told the interviewer, “I think it’s important to understand that these minimizing procedures are taken very seriously, and all other agencies that are handling raw signals intelligence are essentially going to have to import these very complex oversight and compliance mechanisms that currently exist at the NSA.”
I’ll pause while you fall to the floor helpless with laughter.
Recovered? Well, here’s more: “Within the NSA, those are extremely strong and protective mechanisms. I think people should feel reassured that the rules cannot be violated --- certainly not without it coming to the attention of oversight and compliance bodies. I am confident that all of the agencies in the U.S. intelligence community with discharge those very same obligations with the same level of diligence and rigor, adhering to both the spirit and letter of the law.”
It makes you want to laugh till you cry. I wonder if Bill Barr is laughing...or crying.
Oh, gosh, here’s even more amusement: “...I think the bottom line is that it’s comforting to a large national security community that these are procedures that are signed off by Director of National Intelligence James Clapper and Attorney General Loretta Lynch, and not by the DNI and attorney general that will ultimately be confirmed under the Trump administration,”
Well, THAT’S a relief! Why Trump might try to defy Americans’ constitutional rights, and the Obama people would NEVER have done that.
Hennessey concludes, “If there’s a silver lining to some of the ANXIETIES THAT THE INCOMING ADMINISTRATION HAS PRODUCED [emphasis mine], I think it’s the potential to move the conversation into a much more productive place.” Funny, I think it's the abuses of Obama’s administration, not Trump’s, that have brought us to the “productive” conversation we need to have about the intelligence community.
In his Thursday podcast, Bongino took a look at Obama’s order #12333 and noted that the day it was signed, January 12, coincides with the final unmasking request on Michael Flynn, made by Joe Biden. He postulates that after the rule changes on intelligence sharing, formal unmasking requests were no longer needed. By then, they had what they needed on Flynn, and #12333 made it possible for them to use “evidence” of a crime that was seized “incidentally” (while they were recording Ambassador Kislyak’s calls). That’s how they were able to criminally investigate Flynn, send the two agents 12 days later to interview the unsuspecting Flynn, and all the rest.
Remember that this particular call with Kislyak, the one on December 29, 2016, was NEVER unmasked because Obama’s Presidential Briefing staff had told the FBI to get it. The narrative was that Flynn was picked up “incidentally,” but he really wasn’t. They were listening very intentionally. As Bongino explained, this executive order provided cover and allowed them to use the call. (Even though he never said anything inappropriate during the call, they absurdly tried to stretch the Logan Act to cover it.)
The media --- Exhibit A: that piece in THE ATLANTIC --- ran with their idiotic cover story: that Obama changed these rules because of anxiety that TRUMP would tread on Americans’ civil liberties. They really did it to stomp all over Mike Flynn’s civil liberties and to give themselves cover to do it.
By the way, I mentioned yesterday that we should mark our calendars for former acting Attorney General Rod Rosenstein’s testimony before the Senate Judiciary Committee on June 3, and now, Elizabeth Vaughn at RedState.com has just posted a great piece expressing the same enthusiasm.
Vaughn explains that it’s no accident Rosenstein is first up. The FBI’s own documentation shows that by the time Rosenstein appointed Mueller to be special counsel, he’d already been briefed that President Trump was not a suspect, as they had no evidence he personally had been involved in Russian “collusion.” The sources (Christopher Steele and his sub-sources) hadn’t held up. This must be why Rosenstein expanded the scope to include Flynn’s “criminal” violation of the Logan Act.
As I said, mark your calendars.