RedState has had a couple of good posts by blogger “Shipwreckedcrew” on Monday and Tuesday this week, and they’re a timely reminder that we have things we can read into recent developments that carry implications for the John Durham investigation.
On Monday, the RedState post was about a tweet from Paul Sperry, sent on 1 August, in which he spoke of hearing from his sources that U.S. Attorney John Bash (Western District of Texas; Shipwreckedcrew has it as Eastern) will be expanding the scope of his probe into the “unmasking” problem during the Obama administration.
DEVELOPING: Sources say special prosecutor Bash is looking @ Obama admin's "to/from/about" queries related to NSA's upstream collections of FISA Sec 702 data going back to 2015 & earlier,which include collections involving US citizens & the use of that raw data by FBI contractors
— Paul Sperry (@paulsperry_) August 1, 2020
As Shipwreck (gonna shorten that, shipmate) notes, the expansion will look at exactly the concern most relevant to grasping the scope of how intelligence was misused against the Trump campaign by the Obama administration. “Unmasking,” per se, as we have discussed repeatedly in these pages, is a formal action, which in the theory of established procedure comes with certification and an audit trail. But FISA Section 702 queries using “to/from/about” query terms can function as a poorly audited, backdoor method of unmasking U.S. persons – and clearly did so in tens of thousands of known cases between at least 2012 and 2016.
Shipwreck’s Tuesday post is a good reminder of something else we’ve mentioned here at LU a few times: that what the Durham probe is headed for is indictments, not a report.
It’s a point I’ve made quite a number of times now. A key reason we hear so little from the Durham probe, and the associated investigations (e.g., Jensen’s in Missouri, now Bash’s in Texas), is that Bill Barr wants indictments. That means the Justice Department can’t tip its hand on anything. The untimely public exposure of what the DOJ entities are doing would set teams of defense attorneys skedaddling on their clients’ behalf, and troves of evidence skittering off into the ether.
I can’t really think of a bigger, more complex, or more important case that has ever been essayed in U.S. history, and it can’t be prejudiced beforehand by a stream of leaks like the one we got from the Mueller tale-spinners. The Durham operation isn’t about persuading the public in the absence of evidence. It’s about persuading courts in the presence of it.
Assuming Durham has found real predicate “matters” to pursue, I believe the public will ultimately get our day. The court processes will have to work themselves through. But the day will come when we get the public wirebrushing this whole thing so badly needs, because Congress will take it up.
I predict what we’ll find is that not enough of what people were reprehensibly engaged in, during the Obama administration, is categorically illegal. But there’s a lot of it that should be – and decades’ worth of technology sprinting ahead of statute law for us to catch up with.
The Durham investigation will help clarify that for us. It will divide the prosecutable from the non-prosecutable, precisely because it’s about indictments and not just crafting a tendentiously-framed report for political impact.
But there’s no getting to that point without the heavy lifting of an investigation based on the definitions of statute law. Durham & Co. have to do that the old-fashioned way; as Susan Rice would have Obama say, “By the book.”
Shipwreck makes an elegant case for Barr’s and Durham’s enterprise. The reason I’m posting this article is to add my own case to it. The case is this: what Paul Sperry tweeted on Saturday tells us more than that John Bash is looking into 702 queries.
It tells us that Barr and Durham already know there’s enough there to do something about. I don’t think the overall process is just starting. I think it’s been underway – in the hands of a few actors – since 2016. I’m confident we know more than the public imagines already about who did what, and the question now is not so much what the scope of it was, but what means there are in statute law to take action and potentially prosecute it.
What Admiral Mike Rogers did in 2016, with his report to the FISA court and his brief to President-elect Trump, is a signal that the computer system forensics on the rogue 702 queries were already begun. The relevant IT systems can be audited for the requisite information; indeed, as I’ve discussed before, that’s a generic requirement for federal systems, one that is adapted for the most secret and secure systems, but not unique to them.
The issue is more that the trove of information contained in those system records seldom is audited. And for one entity – the National Security Council – it’s conceivable that auditing of the staff’s user activity may be allowed only when a new administration comes into the White House. Nobody can overrule POTUS himself on that matter.
As I’ve also pointed out, it isn’t just the government enterprise systems that have to be audited either. Once IT cloud services were contracted for government systems – as they were for the intelligence community in 2013, with Amazon Web Services – the cloud operated by the contractor is also in play. Since the IC’s “C2S” cloud stood up under the Amazon contract, understanding the scope of how 702 queries were used to track Americans had to involve auditing transactions in the cloud as well.
Former NSC staffer Ezra Cohen-Watnick, who left the NSC in the summer of 2017 to take a job with Oracle, appears to have been a key link in that overall chain (see footnote at the link). Oracle provides structured database services to the U.S. federal government, and would be a good perch from which to forensically probe the mechanics of the 702-query data trail left by system users. The fact that such IT expertise was not in Cohen-Watnick’s background indicates he was hired for another – equally relevant – form of expertise.
If John Bash is being set the job now of investigating potential violations of law, that tells me we already have the technical information needed for that legal endeavor. That’s a good sign about the progress already made. It’s real, and it’s going to produce.
What the law isn’t yet set up to handle, as regards the despicable and unacceptable use of NSA’s electronic data, Congress will be confronted with. Getting all the information in one place, in a usable form for human purposes, is the final step, and it’s Bash’s task. It’s here, and it’s not just starting. This is the anchor leg: the bring-it-home-for-the-gold leg of the race. That’s why the anti-Trump dynamo is spinning with more and more ear-splitting noise as each day passes.