Thursday, July 4, 2019

Mueller And The FISA MoU Revisited

It seems like a long time ago, but it was only May 25, 2019, that I published a fairly detailed summary of what was known about the Memorandum of Understanding (MoU) between the FBI and the CIA that the two agencies entered into in 2012. By the terms of the MoU the FBI gave the CIA permission to FBI resources to access NSA databases, opening up CIA access to information on Americans within the US. In other words, the MoU allowed the CIA--using private contractors--to "spy on" (h/t AG Bill Barr) Americans within the US, and most people would suppose that this was the FBI conducting their legitimate counterintelligence (CI) business. Of course, the terms of the Foreign Intelligence Surveillance Act (FISA) forbade the CIA from accessing such data. This occurred while Robert Mueller was Director FBI. At CIA this would have happened either under Acting Director Mike Morrell or Director David Petraeus. The point is that this likely happened in time for the Presidential election of 2012, facilitating--and here's that word again--"spying" on the Romney campaign. Thus, I titled that post Obama Almost Certainly Spied On Willard. I'll be republishing that post, below--for a reason.

As I've mentioned several times, I've been ploughing through the archives of articles on the Russia Hoax by J. E. Dyer. Last night I came across one that contained a reference to a visit Robert Mueller made to the White House in April, 2016, nearly three years after leaving the FBI. While Dyer doesn't relate Mueller's visit directly to the MoU--in fact she frankly states that the visit is a bit of a mystery--I believe that a nexus with the MoU is the easiest way to make sense of that visit. The nature of the MoU and the role that it plays in explaining the full extent of Obama's domestic spying (with Mueller's cooperation) was the subject of the post I just linked. I drew heavily on research published at CTH in that post, but here I intend to add that one crucial explanatory element that Dyer mentions--Mueller's visit to the White House. (Dyer gives credit to "Katica", which is where I first saw this visit mentioned.)

So, below, I'll append the linked post so that all the details will be in one spot, but to lead up to that I'll provide details regarding Mueller's visit to the White House. That visit will be placed within a timeline, but the timeline itself is quite simple, consisting of only three dates--although a few contextualizing dates will be added. So, let's begin.

We've already seen that the MoU between the FBI and the CIA was entered into in 2012. Details on the legal significance of this MoU can be found below. For our purposes, at this point, just bear in mind (as FISC Chief Judge Rosemary Collyer noted) that an MoU that violates the law is simply ... illegal. If FISA forbade CIA access to this type of information, Robert Mueller had no authority to allow the CIA to use FBI resources to circumvent the provisions of FISA. The existence of this MoU came to Judge Collyer's attention on March 9, 2016, as a result of oversight by "DoJ personnel conducting a minimization review"--a review for compliance with minimization rules that are a key part of FISA. Apparently the DoJ oversight personnel found a large number of violations and, when they pressed the FBI for an explanation, discovered that there was more going on than simple bureaucratic mistakes. Here is how Judge Collyer describes the beginning of the inquiry that she became a key part of:

March 9, 2016

On March 9, 2016, DOJ oversight personnel conducting a minimization review at the FBI's ... learned that the FBI had disclosed raw FISA information, including but not limited to Section 702-acquired information, to a ... Compliance Report at 92. ... is part of the ... and "is largely staffed by private contractors" ... certain ... contractors had access to raw FISA information on FBI storage systems ... Id. The apparent purpose for the FBI's granting such access was to receive analytical assistance from ... Nonetheless, the ... contractors had access to raw FISA information that went well beyond what was necessary to respond to the FBI's requests; ... The FBI discontinued the above-described access to raw FISA information as of April 18, 2016. ...

Note two things.  First, this problem was initially caught by DoJ personnel, rather than by Mike Rogers at NSA. Secondly, the private contractors' activities were flagged because they had gone far beyond any legitimate activity that the FBI could have taken. In fact, the subsequent review by NSA, instigated by the findings of DoJ oversight personnel, showed that over a very limited time period the rate of abuse ran at about 85% of all database searches. While the NSA review only provided a limited snapshot of the deliberate abuse that was going on, Judge Collyer specifically stated that there was every reason to believe that it went back to 2012. In other words, it had been enabled by the MoU.

The result of this discovery by DoJ oversight personnel was that NSA conducted the above described review. The NSA report wasn't completed until late October, 2016, just after DoJ and the FBI had rushed the Carter Page FISA into operation. Judge Collyer's report took even more time, but in the meantime NSA's preliminary peek showed that the abuses were so clear that remedial steps should be taken immediately--as noted by Judge Collyer:

The FBI discontinued the above-described access to raw FISA information as of April 18, 2016.

What were the practical consequences? Dyer lays those out in stark terms:

Between March and October 2016, the National Security Council effectively became the only place in government where staffers could continue to make FISA data pulls with solely political supervision – political appointees; Obama loyalists – guaranteeing their good behavior.

But, just a few days before that remedial action was put into effect an interesting event occurred. Robert Mueller--who had retired as Director FBI nearly three years before, in September, 2013--turned up at the Obama White House with his former chief of staff for a meeting with Stefanie Osburn, the Executive Director of the President's Intelligence Advisory Board (PIAB). Here I'll let Dyer describe why this meeting seems unusual and significant:

13 April 2016

13 April 2016: A truly odd development: Robert Mueller and his former chief of staff Aaron Zebley (from when Mueller was FBI director) meet in the White House complex with Stefanie Osburn, executive director of the President’s Intelligence Advisory Board. (The meeting is in the New Executive Office Building.) Zebley, who is now on Mueller’s special counsel team, represented Hillary IT aide Justin Cooper in 2015 – the guy who set up her private email server and attacked her old Blackberries with a hammer. 
The timing is curious for a White House visit by these two men, with a relatively obscure intelligence advisory official. Osburn’s job is not a policy position; she was appointed to it in 2005, and as executive director of the PIAB, basically keeps it going as presidential appointees from other walks of life cycle through it. (Foreign Policy magazine lamented in November 2017 that Trump had yet to appoint any members to the PIAB. But as far as can be discerned, the skeleton professional staff is still on the job. That would include Ms. Osburn.)
Why Mueller and his long-time associate Zebley were meeting with Osburn in April 2016 remains a mystery. Given everything else that was going on related to Hillary’s emails at the time, it’s not out of the question that they were addressing a policy issue connected with the intelligence aspects of that problem. Hillary’s use of the private email server exposed hundreds of emails with classified material on the Internet.

There was, in addition to Osburn, another PIAB representative present. That was Nancy Y. Fortenberry--General Counsel for the PIAB. This will give you a flavor for Nancy Y. Fortenberry:

Nancy Y. Fortenberry holds a B.A. in Political Science, with Honors, from Jackson State University; a J.D. from the American University, Washington College of Law; and an LL.M., with a certificate in National Security Law, from the Georgetown University Law Center. She completed the Senior Executive Fellows Program at the Harvard University, Kennedy School of Government, and is a member of the Virginia Bar. Since January 2013, Ms. Fortenberry has been detailed to the White House where she served as Deputy Legal Advisor on the National Security Council staff, and currently serves as General Counsel to the President’s Intelligence Advisory Board.

So, two former top FBI officials--who have been gone from the FBI for almost three years, both of whom are also high level attorneys--come to the White House for a chat with a career bureaucrat who runs the PIAB, who makes sure to have her lawyer present for the meeting as well. The question is, What was up with that? What could they possibly have to discuss?

Dyer is frankly mystified at this meeting and speculates that it might have had something to do with the Hillary email case. I say, Probably not. Since the Hillary email case was an active investigation involving the FBI and DoJ, but with origins back when Mueller was Director FBI, it seems to me that all inquiries should have been handled through the current management of the FBI--starting with its then Director, the disgraced James Comey. Conceivable, Mueller could be considered a witness in that investigation and so probably shouldn't be consulting with the PIAB about it. Further, why would the PIAB be involved in that investigation to begin with? Here is Wikipedia's description of what the President’s Intelligence Advisory Board is all about:

The President's Intelligence Advisory Board (PIAB) is an advisor to the Executive Office of the President of the United States. According to its self-description, it "...provides advice to the President concerning the quality and adequacy of intelligence collection, of analysis and estimates, of counterintelligence, and of other intelligence activities." 
The PIAB, through its Intelligence Oversight Board (IOB), also advises the President on the legality of foreign intelligence activities.

In light of that, I think Katica's explanation (expressed in a sarcastic tweet to Maggie Haberman) is a pretty good working hypothesis:

Seems legit ... FISA chat at the WH maybe?

And five calendar days later, again, as noted by Judge Collyer:

April 18, 2016

The FBI discontinued the above-described access to raw FISA information as of April 18, 2016.

It looks like that meeting may have been a heads up to Mueller regarding "the quality and adequacy of intelligence collection, of analysis and estimates, of counterintelligence, and of other intelligence activities."

So, there we are. There are unquestionably a lot of people who were part of the US Government's National Security/Intelligence Community apparatus who have a serious interest in hushing all of that up, about the Memorandum of Understanding, about the Obama administration using FISA to spy on the GOP. Robert Mueller is one of those people. Pulling out all the stops--legal and ethical--to defeat the Republican candidate for POTUS sure looks like it would have solved, or covered up, this whole "spying" problem, but Donald Trump spoiled that. Failing that, well, why not a coup? Wouldn't Robert Mueller have had a real interest in that? Wouldn't he be the right person to front for the coup attempt, given how deeply involved he had been? But Trump not only survived that, but with Bill Barr running DoJ Trump's attack on the Deep State could be said to be on steroids at this point.

Wouldn't you like to have an opportunity to question Mueller on all of the above?

With that, I'll paste in most of the previous post so it will all be together:


Obama Almost Certainly Spied On Willard

There's much discussion of characters in the 2015-2017 time frame: Brennan, Comey, McCabe, Strzok, etc. but if the antecedents go back to 2012, Mueller is still FBI Director and the AG is...Eric Holder, IMHO one of the more sinister and under-scrutinized figures, and HRC heads State.

I responded in part:

It seems pretty clear that the political spying began in time for the 2012 election. I'd have to do some searching, but somewhere I pointed out that it was Mueller who would have done the illegal MOU with CIA that was mentioned in the Chief Judge of FISC's order.

There have been so many revelations in this Russia Hoax that's it's hard to keep track of it all--impossible without modern search technology. What LM is referring to is research that constitutes one of the most important discoveries that sundance at Conservative Tree House (CTH) has made. I reviewed those matters at the beginning of this month, but not for the first time, in The Fear Of Barr Is Almost Palpable. Indeed, as sundance repeats periodically, it's impossible to remind ourselves of this crucial aspect of the Russia Hoax often enough--there are deep roots to the Russia Hoax in illegal domestic spying. First I'll reproduce my discussion from the post just linked--it's not that long--and then I'll reproduce Don Surber's salutary reminder this morning:


Kim Strassel has a nice article for Friday in the WSJ (subscription wall): For Fear of William Barr: The attorney general gets attacked because his probe endangers many powerful people. What I want to do here is offer a brief paragraph on why Strassel says Washington, DC, is pervaded by this fear, then connect it to a portion of a CTH post tonight. There seems to be a connection, and a fascinating one at that.

Strassel begins by stating flatly that "fear [of Barr] is what’s driving this week’s blitzkrieg of Attorney General William Barr." It takes a while, but she eventually comes out with a succinct explanation for that fear:

Mr. Barr made real news in that Senate hearing, and while the press didn’t notice, Democrats did.The attorney general said he’d already assigned people at the Justice Department to assist his investigation of the origins of the Trump-Russia probe. He said his review would be far-reaching ...
Do not underestimate how many powerful people in Washington have something to lose from Mr. Barr’s probe. Among them: Former and current leaders of the law-enforcement and intelligence communities. The Democratic Party pooh-bahs who paid a foreign national (Mr. Steele) to collect information from Russians and deliver it to the FBI. The government officials who misused their positions to target a presidential campaign. The leakers. The media. More than reputations are at risk. Revelations could lead to lawsuits, formal disciplinary actions, lost jobs, even criminal prosecution.

Let's see.  "Former and current leaders of the law-enforcement and intelligence communities." OK, I'll take a stab at that: James Comey, John Brennan, James Clapper--for starters.

And that brings us to CTH: Big Puzzle Pieces Connecting – The CIA, FBI, and 2016 Political Surveillance is Merging … Be patient, and you'll see where this goes.

Sundance's basic thesis is that the whole Russia Hoax operation was a cooperative effort that, on the operational level and much of the planning level, involved the CIA and FBI working hand in glove. We've seen plenty of evidence for this; that much isn't controversial. Another non-controversial underpinning to the Russia Hoax (although rarely mentioned in the MSM) is the FISA abuse that exploited NSA databases for US Person information for political purposes--probably going back to 2012. You may recall there was a presidential election in that year. Admiral Mike Rogers, then head of NSA, blew the whistle on this abuse and went straight to the FISA Court (FISC). In turn, FISC Chief Judge Rosemary Collyer wrote a report that laid bare all the illegalities, citing the FBI in particular.

That much is known among those who have been following the Russia Hoax. What isn't so widely known is that Judge Collyer's report documents, in a footnote, an enormously important link between the FBI and the CIA that is central to the illegal exploitation of the NSA databases.
Briefly, the CIA is expressly forbidden to investigate US citizens inside the United States--that is the province of the FBI. The fear is that were the CIA permitted to spy on US citizens domestically they would quickly become a true secret police or domestic intelligence service operating extra legally to conduct political surveillance.

However, what Judge Collyer discovered was that the FBI and the CIA had entered into a "memorandum of understanding" according to which the CIA was given access to "FBI systems." In other words, behind the back of the FISC, the FBI agreed to provide the CIA and its contractors access to "702" information--enabling the CIA to engage in illegal domestic spying. Judge Collyer found that over a period of years stretching back to 2012, over 85% of the "702" searches conducted supposedly by the FBI (but in reality often by others) were in violation of 702 "minimization procedures." Which is to say, they were illegal no matter who conducted the searches, but grossly illegal when conducted by the CIA. The FBI might claim lax controls, but the CIA was conducting searches under the "memorandum of understanding" that were expressly forbidden. As Judge Collyer noted, no "memorandum of understanding" can change the law.

Here's how sundance spells it out:

CIA operatives (contractors) were using FBI portal access (per the secret agreement) to exploit the NSA database and extract search results.  Remember, the CIA is not supposed to be conducting surveillance, aka “spying”, inside the U.S. on American citizens. 
In essence the secret agreement, unknown to the court, was the CIA hiding their extraction of U.S. person information by using FBI database access.

Now, interagency memorandums of understanding are entered into frequently, but they are agreed upon at the highest levels. Therefore, the presumption must be that, while the legal types drew them up, only the Directors of the FBI and the CIA could finally enter into the understanding in question.

Of course, the FBI is a part of the DoJ, so one might presume that the National Security Division (NSD) of the DoJ would also be aware of the understanding. Therefore, when IG Michael Horowitz, the DoJ's own in-house watchdog, came knocking, wanting to conduct oversight of NSD, there was a bit of a ruckus. Again, sundance:

In 2015 the Office of Inspector General requested oversight and it was Deputy AG Sally Yates who responded with a lengthy 58-page legal explanation saying, essentially, ‘nope – not allowed.’ (PDF HERE) All of the DOJ is subject to oversight, except the NSD. 
The secret MOU (Memorandum of Understanding) between the CIA and FBI was the reason why the DOJ-NSD could never allow inspector general oversight. 
In the Obama-era political surveillance programs the lines between the CIA and FBI were blurred. They were working together through contractors. 

But Admiral Mike Rogers blew the whistle on that little game.

Now, let's backtrack. Sundance makes the case that, behind the redactions in Judge Collyer's report, the date that the "memorandum of understanding" was entered into was in 2012. You can follow the link above to follow his argument in detail--I'll simply say that I find it convincing. So, if the Directors of the FBI and CIA were the ones who entered into this illegal "memorandum of understanding," well, who were the Directors in 2012?

At the CIA David Petraeus was Director from September 6, 2011 to November 9, 2012. He was succeeded by Mike Morell. So, one of those two, and likely Petraeus.

At the FBI, the Director from September 4, 2001 to September 4, 2013 was ... Robert Mueller. The same Robert Mueller who just finished two years tormenting POTUS Donald J. Trump. Oh my!

So, to our list of "powerful people in Washington [who] have something to lose from Mr. Barr’s probe. Among them: Former and current leaders of the law-enforcement and intelligence communities," could we add Sally Yates and Robert Mueller? I don't see why not, if AG Barr's review of what's been going on is, indeed, "far-reaching."

I say, get all these people in front of a Grand Jury. Let's find out who else knew about this.


So, with that context, Don Surber writes this morning: He likely spied on Mitt too. Note the reference (I've supplied a link) to the massive leak to the NYT. You could say that that leak was done in the face of a massive crisis for the liberal/prog Deep State regime that had thought it would rule and transform America forever--with the help of domestic spying. And so in similar fashion, this past week, in the face of the existential crisis that Trump and Barr's declass represents, the NYT is now warning that declass of documents revealing the criminal wrongdoing and the coup conspiracy of the Deep State and the DC Establishment could harm our Intelligence Community--IOW,  the Deep State and the DC Establishment. Boo hoo!

Does Romney not realize that Obama very likely spied on him too during the 2012 campaign?
[For Obama not to have spied on Romney] would require having an Obama who was willing to risk jail to elect Hillary in 2016 but not willing to do so for his own re-election.
There are many signs that domestic spying was routine. Susan Rice was very casual in discussing unmasking -- that is reading transcripts of Americans who were accidentally spied upon.
Indeed, Obama had no problem sharing transcripts of his wiretapping of Donald John Trump with the New York Times. He did this so the Times would blast in on Page One on Inauguration Day to cast shade on President Trump's triumphant entrance into the Oval Office.
Training intelligence resources on his domestic rivals made sense.
Obama saw Iran as a friend. He gave it $170 billion. Cuba was a friend. He dropped the embargo in exchange for, well, nothing. Russia was a friend. He let it control one-fifth of America's uranium supply.
Instead, he spied on the people he considered his enemy. Donald John Trump was not the only one. He was not the first.


  1. The illegal spying on US citizens by the Obama Administration began at least as early as 2010, and probably within months of Obama's inauguration. The MOU in 2012 was an after-the-fact Bandaid intended to compensate for ongoing illegal acts (which largely began within the IRS and involved illegal searches of IRS databases). The evolution into FISA-based spying using 702 searches was made necessary by exposure of the IRS spying and targeting activity.

    Very simply, if the full extent of Executive Branch criminality were ever to be revealed and investigated, the number of applicable prosecutions would be in the hundreds and monopolize DOJ resources of many years, if not a decade or more. This is the reason that Sessions whitewashed the IRS investigation and no one was prosecuted. It would have opened the floodgates.

    1. This is pretty much the essence of Progressivisim--its end justifies its means. Constitutional government is an obstruction to progress and therefore can be dispensed with.

  2. I don't remember you mentioning J. E. Dyer's suggestion that one of the contractors was a company owned by John Brennan.


    .... it appears increasingly likely that the contractor whose name is redacted in the [FISA Judge Rosemary] Collyer order was the company Brennan was the president of between 2005, when he left the Terrorist Threat Information Center (TTIC), and 2009, when he joined the Obama administration. The company was called The Analysis Corporation.

    There is much more detail, and several informative links, in my 7 April post; please see it for background. The Analysis Corporation, or TAC, was one of numerous contractor companies that provide analysis and IT services to federal agencies.

    Brennan’s role with it, as president from 2005 to 2009, had amplified significance in this scenario for two reasons.

    One is that Brennan honchoed the Obama administration’s reaction to the Underwear Bomber problem. He was the counterterrorism “czar” in Obama’s Oval Office who approved and shepherded the policy push for the expanded intel sharing on Americans. ....

    The other is the TAC contracting history .... TAC had become a subsidiary of the contracting company Sotera by the time of these events ....

    Given that the purported purpose of the 2012 data-sharing motion was to facilitate information flow between the FBI and NCTC, the centrality of TAC’s position in that regard was probably unmatched. TAC had contract personnel embedded in the day-to-day operations of both agencies, working on the same body of data and processes. ....

    Given that the purported purpose of the 2012 data-sharing motion was to facilitate information flow between the FBI and NCTC, the centrality of TAC’s position in that regard was probably unmatched. TAC had contract personnel embedded in the day-to-day operations of both agencies, working on the same body of data and processes.

    It is for that reason that I suggest Brennan’s TAC – doing business by 2009 as a subsidiary of Sotera – is the contractor referred to in Judge Collyer’s order. ...

    [end quote]

    1. Mike, that's very strange. If you had asked me, have you ever written about Dyer's work on that topic, I'm pretty sure I'd have responded off the top of my head, Yeah, of course I have. But I just did the best searches I could come up with and found nothing. Of course I've read the article, and I thought I'd tried to summarize it. Not sure why I decided not to. The lead to Brennan's company is highly suggestive and obviously needs investigating in light of that data sharing MoU.

  3. 33 Key Questions for Robert Mueller, published by Jeff Carlson on his The Markets Work website

    1. Yeah, Carlson is always pretty thorough. Check out The Federalist today. Margot Cleveland has a sensible article re questioning of Weissmann in the closed session. Her take is similar to mine, in that she doesn't see any of this testimony as presenting a big upside for the Russia Hoaxers--rather the contrary.