Is It Time To Rethink Some Things?

The Obamagate "community" is buzzing this morning over newly unredacted Strzok/Page texts that have been made public through the Senate. One of the texts features Strzok asking

"Did you get all our OCONUS lures approved?"

In the original public release "lures" was redacted. It has now been unredacted.

Translation: "OCONUS" = Outside the Continental US; "lures" = sting op, trap.

So, this means that Strzok was seeking authorization for informants of one sort or another--or possibly undercover (UC) agents--to approach a target OCONUS.

Now here's the kicker: this text was from 12/31/15! The FBI was already targeting someone close to Trump way back then! Since this is months before Papadopoulos and Page got near the Trump campaign, the betting is that it was Michael Flynn they were targeting. Which makes sense, because we know that the Obama Administration had it in for Flynn from his days with Defense Intelligence Agency (DIA), when he wrote a paper blaming the US for the rise of ISIS.

Once again, the question arises: Was there a case opened on Flynn at that time, to provide an administrative basis for these types of investigative techniques? What kind of an investigation was this: Assessment, Preliminary Investigation, Full Investigation? Could there have been a FISA on Flynn at any time? Does this speculation have any bearing on what we know about Sally Yates and the framing of Flynn in January, 2017:

A Guide To Spygate, Informants, FISA

What follows is a reworked version of So, What's A "Threat To National Security"? which contains a difference in emphasis.


Kim Strassel raised an interesting question, Friday, in her regular weekly column--The Curious Case of Mr. Downer: His story about the Papadopoulos meeting calls the FBI’s into question. Alexander Downer was the Australian ambassador to the UK in 2016. As the title indicates, Strassel finds the FBI's claim that their probe of the Trump campaign was based on Downer's contact with George Papadopoulos to be ... less than credible. Strassel concludes by raising some very pointed questions:

For months we’ve been told the FBI acted because it was alarmed that Mr. Papadopoulos knew about those hacked Democratic emails in May, before they became public in June. But according to the tipster himself, Mr. Papadopoulos said nothing about emails. The FBI instead received a report that a far-removed campaign adviser, over drinks, said the Russians had something that might be “damaging” to Hillary. Did this vague statement justify a counterintelligence probe into a presidential campaign, featuring a spy and secret surveillance warrants?

Unlikely. Which leads us back to what did inspire the FBI to act, and when? The Papadopoulos pretext is getting thinner.

Indeed--since when does ​"something that might be 'damaging' to Hillary ... justify a counterintelligence probe into a presidential campaign, featuring a spy and secret surveillance warrants?"

The fact is, there is an answer to Strassel's question, and I think we'll find--in fact, recent talking points floated by James Clapper and others point in this direction--that the justification will rely on provisions of the Attorney General Guidelines. To understand ​and evaluate ​this​ defense​, however, and to avoid the pitfalls of speculating with a firm grasp of the controlling guidelines and statutes, we'll need to explore the nature of FBI investigations, because the type of investigation controls, to some extent, the type of investigative techniques that are authorized. All this is set out in detail in the Attorney General Guidelines For Domestic FBI Operations (AGG) and the FBI Domestic Investigations And Operations Guide (DIOG).

Basically, there are three types of FBI investigations that involve opening a​n investigative​ case file: 1) Assessments, 2) Preliminary Investigations, and 3) Full Investigations. The latter two are grouped as "Predicated Investigations" because, unlike in the case of an Assessent, an agent will need to present some degree of factual predication before he can open one of these types of investigation. The type of investigation that is opened will depend upon the factual situation, and if additional facts are developed in the course of the investigation the type of investigation may be upgraded.

As far as investigative techniques go, the Assessment ​serves as a baseline--any technique that can be used in an Assessment can ​also ​be used in a Preliminary or Full ​I​nvestigation. For our purposes, the important point is that the use of existing informants (Confidential Human Sources/CHS) or the recruitment of new informants is authorized for ALL three types of investigations. There has been some confusion recently regarding the use of informants before a "formal" case has been opened. The confusion arises because Assessments are sometimes confused with​ the​ informal initial checking of investigative leads conducted to determine whether or not to open an investigative case file. That type of informal checking can only be conducted using public information, not through the use of informants.

So, What's A "Threat To National Security"?

Kim Strassel raised an interesting question in her column today--The Curious Case of Mr. Downer: His story about the Papadopoulos meeting calls the FBI’s into question. As the title indicates, Strassel finds the FBI's claim that their probe of the Trump campaign was based on Downer's contact with George Papadopoulos to be ... less than credible. And she closes with these observations:

For months we’ve been told the FBI acted because it was alarmed that Mr. Papadopoulos knew about those hacked Democratic emails in May, before they became public in June. But according to the tipster himself, Mr. Papadopoulos said nothing about emails. The FBI instead received a report that a far-removed campaign adviser, over drinks, said the Russians had something that might be “damaging” to Hillary. Did this vague statement justify a counterintelligence probe into a presidential campaign, featuring a spy and secret surveillance warrants?

Unlikely. Which leads us back to what did inspire the FBI to act, and when? The Papadopoulos pretext is getting thinner.

Indeed--since when does ​"something that might be 'damaging' to Hillary ... justify a counterintelligence probe into a presidential campaign, featuring a spy and secret surveillance warrants?"

As I wrote in an email this morning, I think we'll find--in fact, recent talking points floated by James Clapper and others point in this direction--that the justification for launching a counterintelligence investigation into a presidential campaign on the basis of "something damaging to Hillary" will rely on provisions of the Attorney General Guidelines. Bear with me for a moment, because this will lead back to Strassel's question.

Those AG Guidelines, which govern FBI investigations, allow the FBI to open a "predicated investigation" in the following circumstance:

"A predicated investigation relating to a federal crime or threat to the national security may be conducted as a preliminary investigation or a full investigation."

The Guidelines then expand a bit on the distinction between Preliminary and Full Investigations, but for our purposes the important distinction is simply that FISA coverage is available for Full Investigations, but not for Preliminary Investigations.

If you accept the argument that a presidential campaign that seeks "dirt" on its opponent from a hostile foreign power (Russia) is engaged in conduct that arguably constitutes activity that is a "threat to the national security," and if you further accept that the FBI's claims regarding the credibility of its Papadopoulos narrative, then you'll likely agree with Trey Gowdy's notion that the FBI was acting quite properly. Or, to be very specific, you'll likely agree that a Preliminary Investigation was warranted, since the Guidelines allow for a Preliminary Investigation to be "initiated on the basis of information or an allegation" of a "threat to the national security." "Information or an allegation" is a fairly low bar.

Virtually all commentary that I've read focuses on the initiation of an FBI Full Investigation on July 31, 2016. Commentators who have constructed timelines of events--an excellent idea, in and of itself--then argue that the use of informants or "spies" against the Trump campaign prior to July 31, 2016--for which there is considerable evidence--violated the AG Guidelines.

While it's possible that the FBI willfully violated the Guidelines it seems unlikely--bureaucracies don't often operate in such a reckless fashion. Moreover, this view ignores an important possibility, namely, that before the Full Investigation was initiated (July 31, 2016) there may have been a Preliminary Investigation. This approach--use of a Preliminary Investigation as a prior stage before going for a Full Investigation--fits better with the usual careful bureaucratic approach. It also, intriguingly, dovetails with President Obama's reported admonition to "do it by the book" (see below).