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Bypassing the Inspector General – Sally Yates and the DOJ’s National Security Letter Carve-Out

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The New York Times recently disclosed that National Security Letters were used in surveillance of the Trump Campaign. It appears there was a specific reason for their use.

Inspector General Horowitz was appointed by Obama in 2011. From the very start he found his duties throttled by Eric Holder’s DOJ. From Congressional testimony by Horowitz:

We got access to information up to 2010 in all of these categories. No law changed in 2010. No policy changed…It was simply a decision by the General Counsel’s Office in 2010 that they viewed now the law differently. And as a result, they weren’t going to give us that information.

These new restrictions were put in place by Attorney General Eric Holder and former Deputy Attorney General James Cole.

Horowitz hammered away at this time and time again:

Since 2010 and 2011, the FBI and some other Department components…have refused our requests for various types of Department records. As a result, a number of our reviews have been significantly impeded.

Horowitz would continue his battle through Congress and public venues. On October 18, 2015, he wrote an op-ed for the Washington Post:

For decades, there was no controversy over what the words “all records” meant. But that changed in 2010 when FBI attorneys suggested, soon after several critical reports by my office as inspector general at the Justice Department, that “all records” might not include some records the FBI was seeking to withhold.

This was the first time anyone in the department had asserted that the broad powers of the IG Act did not apply fully to our oversight.

There was a specific reason for Inspector General Horowitz’s impassioned editorial.

On August 5, 2014, DOJ Inspector General Michael Horowitz and other Inspector Generals had sent an “IG Access Letter” to Congress asking for unimpeded access to all records. Deputy Attorney General Sally Yates responded on July 20, 2015 with a 58 page Memorandum, that effectively told the Inspector Generals to go away.

The July 20, 2015 Opinion, titled Memorandum for Sally Quillian Yates Deputy Attorney General, was written by Karl R. Thompson, the Principal Deputy Assistant Attorney General of the Office of Legal Counsel (OLC).

The Opinion specifically allowed the DOJ & FBI to refuse Inspector General access to information collected under Title III:

In particular, you have asked whether the Department may grant OIG access, in connection with OIG audits, investigations, and reviews, to information protected by the Federal Wiretap Act, Title III of the Omnibus Crime Control and Safe Streets Act of 1968.

Subject to certain exceptions, each of these statutes restricts the disclosure of particular categories of information:

Title III limits the Department’s authority to disclose the contents of intercepted communications; Rule 6(e) limits the Department’s authority to disclose grand jury materials; and section 626 of FCRA limits the authority of the Federal Bureau of Investigation (“FBI”) to disclose consumer information obtained pursuant to National Security Letters issued under section 626.

In our view, the text of the IG Act contains no clear indication that Congress intended section 6(a)(l) to override Title III, Rule 6(e), or section 626. The Act’s legislative history, moreover, affirmatively indicates that Congress expected an inspector general’s right of access to be subject to statutory limits on disclosure.

Contrast this with actual language Congress placed into the original Inspector General Act:

[Inspector Generals shall] “have access to all records, reports, audits, reviews, documents, papers, recommendations, or other material available to the applicable establishment which relate to programs and operations with respect to which that Inspector General has responsibilities under this Act.”

The July 20, 2015 Opinion was widely criticized. But it did the job it was intended to do. The Opinion limited IG Horowitz’s oversight from extending to any information collected under Title III – including intercepted communications and…National Security Letters.

In response, on August 3, 2015, IG Horowitz sent a blistering letter to Congress. The letter was signed not only by Horowitz, but by all other Acting Inspector Generals as well:

The OLC opinion’s restrictive reading of the IG Act represents a potentially serious challenge to the authority of every Inspector General and our collective ability to conduct our work thoroughly,  independently, and in a timely manner. Our concern is that, as a result of the OLC opinion, agencies other than DOJ may likewise withhold crucial records from their Inspectors General, adversely  impacting their work.

The only means to address this serious threat to Inspector General independence is for Congress to promptly pass legislation that affirms the independent authority of Inspectors General to access without delay all information and data in an agency’s possession that an Inspector General deems necessary to execute its oversight functions under the law.

Horowitz continued to push Congress to pass the Inspector General Empowerment Act. Horowitz would ultimately win his battle, but only as Obama was finally leaving office. On December 16, 2016, Obama signed the Inspectors General Empowerment Act into law.

For more on IG Horowitz’s fight see An Introduction to Inspector General Michael Horowitz.

A National Security Letter (NSL) is an administrative subpoena issued by the government to gather information for national security purposes. NSLs do not require prior approval from a judge.

You can read more about National Security Letters here. A more formal description is provided below:

A National Security Letter (NSL) is roughly comparable to an administrative subpoena. An NSL needs no prior judicial approval. Intelligence agencies issue them for intelligence gathering purposes to telephone companies, Internet service providers, consumer credit reporting agencies, banks, and other financial institutions, directing the recipients to turn over certain customer records and similar information

Prior to the USA PATRIOT Act, the letters had to certify (1) that the information was relevant to a foreign counterintelligence investigation and (2) that specific and articulable facts gave  reason to believe the information pertained to a foreign power or its agents.

Section 505 of the PATRIOT Act altered the FBI’s National Security Letter authority in several ways:

  1. It expanded issuing authority to include the heads of FBI field offices (special agents in charge (SACs));
  2. It eliminated the requirement of specific and articulable facts demonstrating a nexus to a foreign power or its agents;
  3. It required instead that the information was sought for or relevant to various national security investigations; and
  4. It directed that no NSL related investigation of a “U.S. person” (American citizen or foreign resident alien) be predicated exclusively on First Amendment protected activities.

NSLs could be used to obtain information pertaining to individuals two, three, or more steps removed from the foreign power or agent of a foreign power that is the focus of the investigation.

The FBI opened their Trump-Russia Counterintelligence Investigation on July 31, 2016 under National Security concerns.

The New York Times article, Code Name Crossfire Hurricane: The Secret Origins of the Trump Investigation, revealed the strategy:

Counterintelligence investigations can take years, but if the Russian government had influence over the Trump campaign, the F.B.I. wanted to know quickly. One option was the most direct: interview the campaign officials about their Russian contacts.

Narrator: The FBI was completely uninterested in interviewing witnesses. That was absolutely NOT their goal:

That was discussed but not acted on, two former officials said, because interviewing witnesses or subpoenaing documents might thrust the investigation into public view, exactly what F.B.I. officials were trying to avoid during the heat of the presidential race.

Sally Yates made a fitting appearance:

“You do not take actions that will unnecessarily impact an election,” Sally Q. Yates, the former deputy attorney general, said in an interview. She would not discuss details, but added, “Folks were very careful to make sure that actions that were being taken in connection with that investigation did not become public.”

And the true objective was made clear:

The F.B.I. obtained phone records and other documents using national security letters — a secret type of subpoena — officials said. And at least one government informant met several times with Mr. Page and Mr. Papadopoulos, current and former officials said.

For more about that informant see:

Ties That Bind – Stefan Halper, Joseph Mifsud & Alexander Downer (& Papadopoulos)

Use of National Security Letters might help to explain Comey’s reluctance to confirm the existence of the FBI’s Counterintelligence Investigation. From that OLC Opinion Letter:

In our view, however, Title III and Rule 6(e) forbid disclosures that have either an attenuated [weakened] or no connection with the conduct of the Department’ s criminal law enforcement programs or operations, and section 626 of FCRA forbids disclosures that have either an attenuated or no connection with the approval or conduct of foreign counterintelligence investigations.

Regardless, National Security Letters are not to be used for the purposes of maintaining surveillance on an opposing political campaign. As noted by the Intercept:

They are controversial in part because they carry the force of law but are created entirely outside the judicial system: To issue one, an FBI official just needs to attest that the information sought is relevant to a national security investigation. The letters have also been criticized because they are shrouded in secrecy. Companies that receive them are for the most part forbidden from notifying their customers or the public.

The FBI’s internal guidelines suggest that the bureau uses the letters to demand sensitive information on email transactions — even though the Justice Department has specifically advised the FBI that it does not have the authority to use the letters this way. The documents also indicate that the FBI can use national security letters to surveil a “community of interest” by obtaining information from a business about a customer and every person that customer has contacted.

Another crucial element to the gathering of information was access to the NSA Database.

This was done using entry points in the FBI’s system and involved the FBI’s use of private contractors. We only know of this due to actions by NSA Director Mike Rogers as outlined in the April 26, 2017 FISA Court Ruling.

This activity had been going on since at least November 2015. Starting on Page 82:

NSA examined all queries using identifiers for “U.S. persons targeted using the [Redacted] tool in [Redacted] from November 1, 2015 to May 1, 2016.

Based on that examination, “NSA estimates that approximately eighty-five percent of those queries, representing [Redacted] queries conducted by approximately [Redacted] targeted offices, were not compliant with the applicable minimization procedures.”

FISA abuses were ongoing from at least November 1, 2015 through May 1, 2016. They almost certainly started earlier.

A non-compliance rate of 85% raises substantial questions about the propriety of using [Redacted] to query FISA data. While the government reports that it is unable to provide a reliable estimate of the number of non-compliant queries since 2012, there is no apparent reason to believe the November 2015-April 2016 period coincided with an unusually high error rate.

If you’re looking for a deeper dive into the FISA Abuse see:

The Uncovering – Mike Rogers’ Investigation, Section 702 FISA Abuse & the FBI

A shorter review can be found here:

John Carlin – The Former NSD Head Who Enabled the FBI’s Carter Page FISA Warrant

The DOJ had specifically walled-off Title III surveillance from IG oversight on July 20, 2015. By November 2015, the FBI was using private contractors to conduct Section 702 searches of the NSA Database. The searches almost certainly began sooner.

Director Rogers shut down the FBI’s use of private contractors on April 18, 2016.

We don’t yet know when the FBI began using National Security Letters to surveil the Trump Campaign. I’m guessing their use started concurrently with the FBI’s Counterintelligence Investigation on July 31, 2016. I would be completely unsurprised to find they began sooner.

A few posts back, I noted how Grassley’s recent letter provided us a roadmap to Strzok’s texts using footnoted references. The first series of texts Grassley referenced began on April 27, 2016. That’s not by accident.

Yesterday, Sundance put out a great thread, Understanding “Spygate”, the Big Picture.

It’s a high level look at the SpyGate scandal – events, timing and positioning leading up to April 18, 2016. The day NSA Director Rogers terminated the FBI’s use of Outside Contractors. That date marks an important transition. Sundance:

“Spygate” is the evolution of going from passive collection of opposition research to the active creation of something, “Russian Collusion”, that didn’t exist in the observation.

A point made towards the end is particularly worthy of note.

The operation began in 2015. Perhaps earlier. The groundwork had been carefully established by April 2016. The National Security Division and FBI were gathering intelligence through the NSA Database since at least November 2015.

When that access was shut off, active surveillance initiated through the planned-for use of National Security Letters. Incorporation of active human sourcing began.

Robert Barnes stated it this way:

I’m concerned we’ll find this was routine. I’m concerned surveillance of the Trump Campaign was really nothing out of the ordinary. I’m concerned about this:

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