Come for the politics, stay for the snark.

Hot Air and Ill Informed Banter

Consistently wrong since 2002

It’s a tarp!

Verified, but limited!

Naturally gregarious and alpha

Almost as fun as hiking the Appalachian Trail.

I showered with Rahm and all I got was this shitty blog.

Han shot first.

I personally stopped the public option…

Mission Accomplished!

Today in our ongoing national embarrassment…

An almost top 10,000 blog!

The Math Demands It!

This blog is Obama’s Katrina.

Technically true, but collectively nonsense.

No one could have predicted…

Shock troops for the Unitarian Jihad.

Impressively dumb. Congratulations.

Dinky Hocker Shoots Smack!

Word salad with all caps

Just a few bad apples.

We Survived Breitbartpocalypse!

An army of rabid, anonymous commenters

I thought we were promised Infrastructure Week

You are here: Home / Archives for Adam L Silverman

Adam L. Silverman is a consulting national security subject matter expert specializing in low intensity warfare (asymmetric, irregular, and unconventional warfare, revolution, insurgency, terrorism), civil affairs, psychological operations, and cultural considerations for strategy and policy.

He routinely provides operational support to a number of US Army, DOD, and other US Government elements. Dr. Silverman holds a doctorate in political science and criminology from the University of Florida, as well as masters' degrees in comparative religion and international security. Full professional bio available here: https://www.balloon-juice.com/adam-silverman-bio/

Adam Silverman has been a Balloon Juice writer since 2015.

Let’s Say You Wanted To Destabilize Half a Dozen Countries All at Once…

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If you wanted to bring down the governments of, at least, 3 of the 5 Five Eyes countries (US, UK, AUS) and several other western (Italy) and western oriented (Ukraine) governments, what has been reported on today would be a good way to do it. You’ve got at least five legitimacy crises being created by this that will at the very least weaken the stability of the governments in each state. I really do wonder what is on the transcripts of the calls between the President and Putin that have been stashed in the National Security Council’s Directorate of Intelligence’s code word access only computer system.

Open thread!

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Attention To All Balloon Juice Readers In the West Central Florida Area!

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If you’ve got some free time on Tuesday October 1st and want to do a good deed, this gentlemen deserves an appropriate send off.

Given his age, my guess is he’s either a Korean War or, more likely, a Vietnam Veteran (or both). The funeral home handling his interment invites anyone who is able to to attend.

Edward K Pearson

Naples – Edward K. Pearson, 80 of Naples passed on August 31, 2019, interment will be on Tuesday October 1, at 12:30 pm at Sarasota National Cemetery 9810 State Road 72

Sarasota, FL. This Veteran has no immediate family all are welcome to attend

Published in Naples Daily News on Sept. 29, 2019

So if you’re in the Sarasota area, or can get there without too much fuss, and are free or can clear some time on Tuesday in the late morning/early afternoon, I’m sure your attendance will be welcomed.

Open thread!

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Schlemazel’s Memorial Service

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Schlemazel’s memorial service was today. His niece Laura sent me this write up to share with you all:

Schlemazel was memorialized today in the beautiful French Park in Plymouth MN. The weather was ideal, sunny and in the 60’s. Michael and Edith represented the BJ community. In typical fashion there were no green balloons to be had last minute at Cub Foods due to a shortage of time and helium. The only things left were princesses, welcome to boy or girl and one purple monkey with a banana. The only thing I could think of was the universe and Mark conspired to make a monkey of me as our family last name is Gibbons, one last joke. I had intended to put a nice little booklet together of all of the wonderful comments you all made but I’m afraid family obligations made that impossible. I did have the chance to tell his wife about how I read all 200+ comments you all made 2 nights before he died and how he both laughed and cried as I read. He fell asleep that night knowing he was surrounded by love which is all anyone can ask for. Life is short and can end abruptly and unexpectedly so you don’t get the chance to say goodbye. I am grateful I got to share this community with him and got to say farewell in the best way possible given the circumstances. I am grateful that you all gave us that gift. If you would like to set a meet up sometime in the future. I promise to find a green balloon! — Laura Too

Open thread!

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Schlemazel’s Memorial: A Reminder!

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I just wanted to put up a reminder post, before it gets driven from my mind again with everything going on, for Schlemazel’s memorial, which is tomorrow.

From his niece Laura:

Mark’s memorial will be on Saturday September 28th, 12:00 at the Skyview shelter at French Park in Plymouth, MN. Anyone who knew him is welcome to come, and anyone who wants to write a memorial to him I will print out like I did for him at the hospital and put in a form for his family. Thanks for making such a wonderful family!

You all know what you need to do!

Open thread!

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Politico Confirms and Validates the Whistleblower’s Allegation That White House Staff Are Misclassifying Records of the President’s Communications With Foreign Leaders

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Well would you look at that!

From Natasha Bertrand at Politico (emphasis mine):

After 2017, when verbatim transcripts of his conversations with the leaders of Australian and Mexico were leaked to the press, the White House began to restrict the number of officials who had access to the transcripts. One former Trump administration official confirmed that the White House started placing transcripts into the codeword system after those leaks.

April Doss, who served as senior minority counsel for the Russia investigation on the Senate Intelligence Committee and, prior to that, as a top attorney at the National Security Agency, said the S//OC//NF designation of the memo “seems like a typical level of classification for that kind of call.”

That classification indicates that the disclosure of the call would cause “serious damage” to national security, cannot be disseminated by anyone except the originator, and is prohibited from disclosure to foreign nationals. A code word classification, meanwhile, is top secret—a level higher than secret—and then further compartmentalized by adding a code word so that only those who have been cleared for each code word can see it.

Doss said it would be “highly unusual” for this kind of routine call between world leaders to be placed into a system that’s used for information about the nation’s most highly compartmented programs. “It risks undermining a whole host of important national security activities,” she said, noting that “most if not all” officials who would need to have access to call readouts as part of carrying out their regular duties in advising on foreign affairs and implementing the administration’s policies “would not have access” to the codeword system.

The president has ultimate classification authority and it’s an open legal question whether he’s bound by executive orders, including one signed by Obama in 2009 that says information can’t be classified in order to “conceal violations of law, inefficiency, or administrative error” or “prevent embarrassment to a person, organization, or agency.”

But it would be squarely within the whistleblower’s rights, as governed by the 1998 Intelligence Community Whistleblower Protection Act, to sound the alarm over the potential violation of that executive order, Doss said—especially if it was done by the president’s staff. That in turn could at least partly be why the IC IG considered it to be within the intelligence community’s purview, despite the DNI’s determination that it fell outside their jurisdiction.

A former intelligence official who served on Obama’s National Security Council, but who wished to remain anonymous to discuss the NSC’s codeword-level system, agreed that storing a transcript on that system “would severely limit those personnel able to view it.”

While limited in what he could disclose about the system without revealing classified information, the official said, “The bottom line is that if the administration attempted to upload the transcript to that system it would have been to make it nearly impossible to share. The system was not intended for unclassified material.”

He added that he’d “never” seen a presidential transcript stored there. Pfeiffer said that he could not recall ever seeing a transcript stored there, but said it would’ve only been possible if a president’s calls “touched on compartmented matters requiring that protection.”

As I delineated this morning, misclassifying this information by upclassifying it so it can be “locked down” prevents those who need to know this information from actually being able to access it and know it. Doing this to protect the President from himself, creates a serious insider threat and counterintelligence problem for the United States because it makes it almost impossible for senior national security and intelligence personnel to know what they need to know to both accurately and effectively carry out US national security and foreign policy, as well as to protect US interests because they do not know what the President is saying to, hearing from, agreeing with, and/or agreeing to do in his conversations with foreign leaders. The fact that the people that the President has hired into senior political appointments at the White House are unable to control themselves enough to not settle scores between themselves by viciously leaking about each other and the President to the press is not an excuse to mishandle and misclassify US government information. It is a good reason to hire better and more professional people.

And since the White House Counsel’s Office allegedly approved doing this, Don McGahn, Pat Cipollone, and their staff need to be brought before the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence to explain what it was and is they’re doing regarding classification of information. Their clearances should also be stripped and their access to classified information stopped immediately.

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The Key Takeaways from the Whistleblower Complaint and the Intelligence Community Inspector General’s Accompanying Letter

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I’ve now done a first read through of both the whistleblower complaint and the Intelligence Community Inspector General’s accompanying letter. I think the following from the whistleblower’s complaint and the Intelligence Community Inspector General’s letter are the key takeaways. Emphasis is my own.

Here’s the key takeaway that sets up why this is an “urgent concern” and clearly under the purview of the Director of National Intelligence, according to Inspector General Atkinson’s accompanying letter. And, as I wrote last week, it is because what the President had done, and what whichever staff had done to misclassify the Memorandum of Conversation (MEMCON) by upclassifying it, creates a serious counterintelligence matter. Counterintelligence matters are clearly under the purview of the Director of National Intelligence. This is from page 3 and it is the first full paragraph on that page.

As stated above, to constitute an “urgent concern” under 50 U.S.C. Section 3033(k)(5)(G)(i), the information reported by the Complainant must constitute “[a] serious or flagrant problem, abuse, violation of law or Executive order, or deficiency relating to the authority of the Director of National Intelligence involving classified information”8 Here, the Complainant’s Letter alleged, among other things, that the President of the United States, in a telephone call with Ukrainian President Volodymyr Zelenskyy on July 25, 2019, “sought to pressure the Ukrainian leader to take actions to help the President’s 2020 reelection bid.” U.S laws and regulations prohibit a foreign national, directly or indirectly, from making a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election.9 Similarly, U.S. laws and regulations prohibit a person from soliciting, accepting, or connection with a Federal, State, or local election.10 Further, in the ICIG’s judgement, alleged conduct by a senior U.S. public official to seek foreign assistance to interfere in or influence a Federal election would constitute a “serious or flagrant problem [or] abuse” under 50 U.S.C. Section 3033(k)(5)(i), which would also potentially expose such a U.S. public official (or others acting in concert with the U.S. public official) to serious national security and counterintelligence risks with respect to foreign intelligence services aware of such alleged conduct.

Here’s the larger and more important key takeaway that provides the full context as to why this is a counterintelligence concern. It can be found in the whistleblower’s complaint. From the final section on page 3:

II. Efforts to restrict access to records related to the call

In the days following the phone call, I learned from multiple U.S. officials that senior White House officials had intervened to “lock down” all records of the phone call, especially the official word-for-word transcript of the call that was produced – as is customary – by the White House Situation Room. This set of actions underscored to me that White House officials understood the gravity of what had transpired in the call.

  • White House officials told me they were “directed” by White House lawyers to remove the electronic transcript from the computer system in which transcripts are typically stored for coordination, finalization, and distribution to Cabinet-level-officials.
  • Instead, the transcript was loaded into a separate electronic system that is otherwise used to store and handle classified information of an especially sensitive nature. One White House official described this act as an abuse of this electronic system because the cal did not contain anything remotely sensitive from a national security perspective.

I do not know whether similar measures were taken to restrict access to other records of the call, such as contemporaneous handwritten notes taken by those who listened in.

And from the first substantive paragraph on page 1 of the “Classified Appendix” of the whistleblower’s complaint:

(U) Additional information related to Section II

According to multiple White House officials I spoke with, the transcript of the President’s call with President Zelenskyy was placed into a computer system managed directly by the National Security Council (NSC) Directorate for Intelligence Programs.This is a standalone computer system reserved for codeword-level intelligence information, such as covert action. According to the information I received from White House officials, some officials voiced concerns internally that this would be an abuse of the system and was not consistent with the responsibilities of the Directorate for Intelligence Programs.According to White House officials I spoke with, this was “not the first time” under this Administration that a Presidential transcript was placed into this codeword-level system solely for the purpose of protecting politically sensitive – rather than national security sensitive – information.

What the whistleblower is alleging is repeated deliberate misclassification of information. Specifically misclassification by upclassification in order to avoid embarrassing the President and for protecting him from the consequences of his own actions. Essentially an attempt to use the classification to cover for and protect the President. The classification system is not supposed to be, by regulation and guideline, used to prevent embarrassment to the government or to government officials. These parts of the regs and guidelines are, of course, honored more in the breach than in the observance. Regardless, routinely misclassifying information is a serious counterintelligence concern. And the people who have been doing it, as well as those who knew about it and didn’t report it to their Special Security Officer (uniformed and civilian personnel) or Facility Security Officer (contractors) is in real jeopardy.

And Congress really needs to determine just how broad and deep the alleged misclassification scheme goes, who was involved, and what, exactly was misclassified and why. If the whistleblower’s allegations here are correct and can be sustained, there is a huge problem in the White House, under guidance by the White House Counsel’s Office, to purposefully misclassify and mishandle classified information. Which is illegal, a serious insider threat, and a serious counterintelligence issue!

Update at 11:50 AM EDT

There is one other important key takeaway here based on the allegations made by the whistleblower and delineated in Section II and the appendix to Section II that I transcribed above, as well as Acting DNI Maguire’s testimony this morning. In responding to Congressman Schiff’s questioning, Acting DNI Maguire finally made it clear that he first went to the White House Counsel’s Office and then to the Office of Legal Counsel with his questions regarding executive privilege. Here’s the important key takeaway: the whistleblower alleges an ongoing series of criminal acts – misclassifying US government information to avoid embarrassment to the President, appropriate congressional oversight of the President, and any potential political (impeachment, not being reelected) or criminal jeopardy to the President as a consequence of his own behavior. The whistleblower alleges that there is an ongoing criminal scheme, instigated and overseen by attorneys in the White House Counsel’s Office, to misclassify information. Acting DNI Maguire took the allegations to the White House Counsel’s Office that is alleged to be engaging in criminal behavior regarding the deliberate mishandling and misclassifying information for an opinion on whether he needs to comply with the law and forward the complaint to Congress in a timely manner. The White House Counsel’s Office is not a good faith actor in this, they’re alleged to be part of an ongoing series of crimes. This is equivalent of a police chief taking a criminal complaint to the accused criminal to ask whether they should forward the criminal complaint to the prosecutor’s office for action. The alleged criminals were allowed to actively participate in the coverup!

Open thread!

 

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The Acting DNI Publicly Testifies Before the House Permanent Select Committee on Intelligence

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Vice Admiral (ret) Maguire, the Acting Director of National Intelligence and Senate confirmed Director of the National Counterterrorism Center, is testifying publicly before the House Permanent Select Committee on Intelligence (HPSCI) at 9:00 AM EDT this morning. HPSCI’s own live stream for you all is below. HPSCI has also now posted  both the now declassified whistleblower’s complaint that touched all this off, as well as Michael Atkinson’s, the Intelligence Community Inspector General, letter regarding the complaint.

From Congressman Schiff:

“The Committee this morning will be releasing the declassified whistleblower complaint that it received late last night from the ODNI. It is a travesty that it was held up this long.

“This complaint should never have been withheld from Congress. It exposed serious wrongdoing, and was found both urgent and credible by the Inspector General.

“This complaint is a roadmap for our investigation, and provides significant information for the Committee to follow up on with other witnesses and documents. And it is corroborated by the call record released yesterday.

“I want to thank the whistleblower for having the courage to come forward, despite the reprisals they have already faced from the president and his acolytes. We will do everything in our power to protect this whistleblower, and every whistleblower, who comes forward.

“The public has a right to see the complaint and what it reveals.”

If you want your own copies, I’m attaching them here. I’m just now digging into both – they’re not long – and will have more thoughts on them later today/this evening.

Here’s the whistleblower’s complaint:

20190812_-_whistleblower_complaint_unclass

And here’s the ICIG’s letter regarding the complaint:

20190826_-_icig_letter_to_acting_dni_unclass

Here’s the live stream of this morning’s testimony:

Open thread!

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Tempering Expectations: Speaker Pelosi’s Strategic Calculus and the Assumption of Risk

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The Democratic House Caucus has a meeting this afternoon. There has been a lot of speculation, especially in light of the seven first year Democratic representatives’ op-ed in favor of impeachment published last night in The Washington Post. The reporting, or rather the framing within the reporting, has shifted to Speaker Pelosi trying to see just how much support impeachment has, considering a Special Select Committee to streamline everything, including a formal impeachment inquiry, and that the tide has turned on this. A social media rumor spread last night, which appears to originate with one of the anonymous accounts claiming to be a White House staffer/insider, that Speaker Pelosi now has the votes, just among the Democrats and Congressman Amash, for impeachment. The reality is that we really don’t know if that is true, just as we really don’t know who is behind that Twitter account. As the day progresses, as the President gives his speech at the UN General Assembly, which has been previewed as being a Stephen Miller “America First” address, and speaks off the cuff to reporters covering him and the UN General Assembly, we’ll see what happens. I think it is important, however, to both temper expectations and to consider Speaker Pelosi’s strategic calculus to this point and the assumption of risk.

My impression has been that Speaker Pelosi’s plan is to not move until she has the votes. She can count, and right now, even with last night’s op-ed and additional Democratic representatives coming out in favor of impeachment, she doesn’t have the votes. She may have them by this afternoon or be close enough that she feels that she can act, but she may also not. I honestly don’t know if this is a good strategy. My impression is that it isn’t, but it appears to be the one she is using. I think that part of her strategic calculus is the result of learning the wrong lessons from GOP and conservative misbehavior. She specifically stated in 2007 that she wouldn’t even consider impeaching President Bush and/or Vice President Cheney, nor did she have her committees spend a lot of time doing highly political/politicized investigations of them, because she was convinced, and I think not incorrectly, that the Republicans and the conservative movement that sustains them had decided that impeachment of presidents you oppose, which means for Republicans and conservatives, any Democratic president, is a standard, acceptable, and routine political action of Congress. She correctly understood that the GOP and conservative movement as it had evolved had learned the wrong lessons from Watergate, especially about impeachment. So by taking it off the table for President Bush and/or Vice President Cheney, she thought she could retrain them. That was a fool’s wish and errand, but I think she carries this assumption with her now.

This assumption has led her to conclude that if she moves the House to impeach Trump, even if it correctly rebalances some power to Congress and places some brakes on his lawlessness and puts so much negative pressure on Senators Collins, McSally Gardner, Tillis, and even a couple of other Republican senators so that the Democrats retake the Senate next year, that as soon as a Democrat is elected president, say in 2020, and as soon as the GOP retakes the House, they’ll just immediately impeach him or her – potentially after the midterms in 2023. I think she both understands, but can’t really bring herself to move on this despite her knowing and understanding just what the Republican Party and conservative movement have become. And the result is what you’re seeing.

The problem with this strategic calculus is that other than preventing really bad legislation from getting rammed through a Republican controlled House and Senate, as of right now there is nothing to justify the current Democratic majority in the House, why they should keep that majority, and why they should be given the majority in the Senate. No one cares how many bills the Democrats have passed given that they’ll never become law because Senator McConnell controls the Senate. And Senator McConnell only has two items on his agenda: confirming Federalist Society chosen judicial nominees and maintaining his majority next year. Every effective strategy requires the assumption of risk. And sometimes choosing not to assume one risk, or set of risks, means that by default one is assuming other risks or sets of risk. Up to this point Speaker Pelosi seems to be afraid of assuming the risks of formally opening an impeachment inquiry, which, as a result, means she is assuming the risk that the President and the Republican majority in the Senate will not simply devour the entire Federal government, the Constitution, and all laws, norms, and customs before the President can be voted out of office and that he will, indeed, be voted out next November.

I think this is the wrong strategic calculus, but no one is really asking me.

Open thread!

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An Actual Profile In Courage and Heroism: The Anniversary of Neerja Bhanot’s Bravery and Sacrifice Should Not Go Unremarked

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Neerja Bhanot Pan Am Trust

(Neerja Bhanot)

I meant to get to this on the 20th, but all the excitement from Infrastructure Week got me carried away with other matters.

Thirty-three years and three days ago, Neerja Bhanot, a 23 year old flight attendant, risked and ultimately sacrificed her life protecting the passengers of Pan Am 73, during an attempted and thwarted highjacking by Islamic extremists before the plane could take off from Karachi, Pakistan.

From the Pan Am Historical Foundation’s tribute page:

Remembering Neerja Bhanot on hijacked Pan Am Flight 73. She died heroically, saving Pan Am passengers from terrorists on Sept. 5, 1986.

Neerja Bhanot was senior flight purser on the Empress of the Seas, a  Pan Am 747 hijacked at Jinnah International Airport in Karachi by four armed men from the Abu Nidal organization en route to Frankfurt and New York. During a 17-hour ordeal, she helped the three-member cockpit crew escape in order to ground the plane so it could not be flown. Bhanot hid passports of passengers so the hijackers could not determine passenger nationalities. She also managed to open the emergency door assisting a number of passengers to escape from the plane. As the hijackers opened fire on passengers and crew, Neerja Bhanot lost her life shielding three children from bullets.

In 1987, she became the youngest and first woman recipient of the Ashoka Chakra award, India’s highest civilian decoration for bravery.

In 2004, the Indian Postal Service issued a stamp in her honor* (http://www.wnsstamps.post/en/stamps/IN036.04)

In 2006 she was awarded the 2006 Special Courage Award by the US Department of Justice. (Read more at Times of India.)

In 2016 a film entitled “Neerja” was released, portraying her herioc life.

Today the Neerja Bhanot Pan Am Trust continues to do great work in memory of this amazing woman. You can learn about the Neerja Awards and the trust at https://www.facebook.com/The-Neerja-Bhanot-Page-109643142413675/

Here’s some more details about her in an excellent Twitter thread:

The world could use more Neerja Bhanots!

Open thread.

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Its Secret Service Codename is Tropical Storm Mother

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And it is going to show up in Florida and demand to speak with the manager!

Open thread!

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Ken Vogel Has a Bullshit Story To Tell That Will Help the President and He Would Appreciate It if the President and Rudy Giuliani Would Shut Up Because They Are Screwing Up His Work!

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Ken Vogel has a bullshit story to tell about Vice President Biden and his son Hunter Biden that would help the President’s reelection chances. Vogel’s story is bullshit, but he’s very upset that the President and Rudy Giuliani just won’t shut up long enough so that Vogel can peddle his bullshit.

Former FBI Special Agent specializing in counterintelligence Asha Rangappa summarizes Vogel’s efforts very, very well.

How do we know the story that Vogel, as well as the President and Rudy Giuliani, are peddling is bullshit? Because two different publications, The Washington Post and The Intercept have debunked it.

And we know where this disinformation comes from, Russian government media outlets. And they started pushing it all the way back in 2014 most likely because most people reasonably assumed Vice President Biden, as the incumbent vice president would run to succeed President Obama positioning his campaign as a third Obama term (see the dates in the third tweet below). This also shows that Putin’s planning to interfere in US politics and the 2016 presidential election through information warfare goes farther back then has been previously recognized.

There’s another piece to the puzzle that debunks Vogel’s, the President’s, and Giuliani’s bullshit disinformation that they lifted whole cloth from Putin’s information warfare campaign against the United States – the legal and Federal professional ethics piece. And here too, even if everything Vogel, the President, and Giuliani are alleging were true, which it isn’t as both the facts and the timelines do not line up, there is no there there. Here’s a deep dive into these issues to answer a question asked by former Federal prosecutor Ken White, who tweets and blogs as Popehat.

And the response from courtesy of the Thread Reader Ap:

asked if anyone had done a law-based deep dive into the allegations that Biden somehow did something legally impermissible (i.e., conflict of interest) by being involved in the Ukraine prosecutor negotiations. I decided to look into it. BLUF: No /Tweetstorm
First off, the general financial conflict of interest laws that generally prohibit Federal employees from participating in matters in which they have financial interests (namely 18 USC.208) expressly do not apply to the Vice President (nor the President). 18 USC 202(c)
Moreover, w/r/t family members of executive branch employees, the primary financial conflict of interest statute only prohibits employees from participating in particular matters in which the employee, their spouse, or their MINOR children have a financial interest. 18 USC 208(a)
So, even assuming for the sake of argument that the conflict of interest statute applied to the VP & even if the departure of the prosecutor were to have had an impact on Hunter’s finances (which all reputable reports suggest was an impossibility given the timeline of events)…
the VP’s involvement in discussions re: the prosecutor still would not have constituted a criminal conflict of interest because Hunter was obviously not a MINOR child at the time.
That said, if the Federal conflict of interest laws did apply to the VP, the fact that a criminal conflict didn’t exist under the statute wouldn’t have ended the legal analysis…
Federal employees are also subject to Standards of Ethical Conduct, which are set out in broader regulations issued by the Office of Govt Ethics. 5 CFR 2635.
Under the Standards of Ethical Conduct, Federal employees generally should recuse themselves from participating in certain matters even if there is no prohibited financial conflict of interest under 18 USC 208.
Under 5 CFR 2635.502, an employee is generally required to recuse when there is a “particular matter involving specific parties, the employee has a “covered relationship” (such as a close family) and a reasonable person would question their impartiality.
Applying this here, even if it were true (its not!) that the prosecutor was investigating the company Biden’s son was involved with at the time that Biden was engaged in discussions re: the prosecutor’s removal, its not clear that this rule would be directly applicable here…
The rule, by its terms, only applies to “particular matters involving specific parties,” which is intentionally narrow and applies to specific proceedings affecting the legal rights of the parties or transactions between identified parties. 5 CFR 2640.102(1).
Examples of such matters are particular contracts, grants, product approval applications, litigation, investigations, etc. Here, it seems a stretch to say that discussions re whether the prosecutor should remain in his position was a “particular matter involving specific parties”
Moreover, even if you stretched & decided it met that definition, the particular rule would not apply directly here anyway, because Biden’s son (nor even the company) was most definitely NOT a party to the matter at issue (whether the prosecutor should remain in his position)…
A caveat: there’s a catch-all provision at 5 CFR 2635.502(a)(2), acknowledging that even in other circumstances not addressed in the reg, an employee should generally recuse anytime their participation in a matter would reasonably raise a question re: their impartiality.
If Biden’s son was involved with a company under active investigation by the Ukrainian prosecutor (again, apparently this is not true!)…
I think nearly any Federal ethics official would have cited this regulation and advised the VP NOT to get involved in discussions regarding the future of the Ukrainian prosecutor, even if only to avoid creating the appearance of a potential conflict
Even still, this is very much a judgment call and even under this incredibly-strained counter-factual hypothetical, the VP’s involvement still would NOT have been a criminal violation.
In short, even if the VP wasn’t exempt from these conflict of interest laws, and even if the facts were other than they actually appear to be, Biden’s behavior still would have been lawful. /End @waltshaub @NormEisen @RWPUSA

Vogel, the President, Giuliani, even the Vice President, are all peddling this bullshit or actively involved with trying to get Ukraine’s new president and his government to assist them in ratfucking the 2020 presidential election, really ratfuck the Democratic primaries, to the President’s benefit. So we already know the cui bono or who stands to benefit piece of this active measures information warfare campaign of disinformation aimed at the American people: the President. What we don’t know, but someone really should be looking into it, is what exactly does Ken Vogel get out of this? What does he stand to benefit? The real question here is why is Vogel clearly peddling debunked Russian disinformation that was created and first used back in 2014 to help obscure Putin’s moves to scarf up Crimea, invade the Donbass, and potentially dirty up a potential Biden 2016 candidacy? Is Vogel just a useful idiot or is he actively participating in an act of information warfare begun by Putin, weaponized by Giuliani and the President, which is intended to propagandize Americans in order to achieve Putin’s strategic interests? This is the real story, not the bullshit that Vogel is pushing. Enterprising reporters and investigators should be looking into it; trying to figure out exactly why Vogel is doing this and what he is getting out of it.

Open thread!

PS: Someone should really also be looking into exactly what it is that Giuliani has been doing in Europe, especially the post Soviet states, over the better part of the past ten to fifteen years supposedly as part of his consulting work as a security expert, which he is not. Journalists and investigators should also be looking into who has been paying for whatever it is he’s been doing. It isn’t all just beer, skittles, and cuckolding Marines. And it clearly has made Giuliani a very wealthy man.

Full Disclosure: I served as the Cultural Advisor (senior civilian advisor for culture) to the Commanding General of US Army Europe under temporary assigned control (TACON) from December 2013 to June 2014 and under operational control (OPCON) from June to August 2014. The views expressed here are solely my own and do not reflect those of US Army Europe and the US Army either in 2014 or now.

Ken Vogel Has a Bullshit Story To Tell That Will Help the President and He Would Appreciate It if the President and Rudy Giuliani Would Shut Up Because They Are Screwing Up His Work!Post + Comments (247)

The Intelligence Whistleblower’s Life Is Over Because the Intelligence Community Whistleblower Protection Act Does NOT Actually Protect Intelligence Community and National Security Whistleblowers!

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Right now only a very limited number of people know the name of the Intelligence official or officer who filed the whistleblower complaint with the Intelligence Community Inspector General (ICIG). She or he is represented by a top national security lawyer, who is of counsel for a firm that specializes in national security law, classification, and clearance related issues. I have no doubt that by late Wednesday evening, Acting White House Chief of Staff Mick Mulvaney was most likely called by the President and told to figure out which senior Intelligence officials and officers were assigned to the National Security Council’s National Security Staff over the summer and returned to their home agency in late July or early August in order to figure out who made the complaint. By last night the President’s surrogates started impugning the whistleblower as an Obama holdover or loyalist or a deep state actor acting out of political motivations. The President, of course, decided to pick up that argument this morning on Twitter and during his ongoing press gaggle in the Oval Office. And we now have this reporting:

At this point, if they haven’t done so already, the Intelligence official or officer who made the complaint and his or her attorneys should have plans in place to both mitigate potential retaliatory legal action the administration might take and to safeguard her or his life and that of his or her family. The reason these actions are necessary is because the Intelligence Community Whistleblower Protection Act DOES NOT ACTUALLY PROTECT WHISTLEBLOWERS! Ken McClanahan, an attorney specializing in national security law, classification, and clearance provides a handy explainer at Just Security.

What is the ICWPA?

The ICWPA holds the dubious distinction of being the only “Whistleblower Protection Act” that doesn’t actually include any whistleblower protections. To summarize the law’s extensive history, I’ll say: It originally was intended to provide protections for national security whistleblowers who wanted to go to Congress, but was watered down in the final iteration due to separation of powers objections from the executive branch. While keeping the original – and misleading – name, the final law only really established a mechanism for Intelligence Community whistleblowers to forward a complaint to the congressional intelligence committees by way of an inspector general. It is a breakdown in this process that Schiff is flagging.

What is the ICWPA process?

Simply speaking, if a whistleblower working for an Intelligence Community agency wants to bring something to the attention of the congressional intelligence committees, they must write up a complaint and give it to either their agency’s inspector general or the Intelligence Community Inspector General (ICIG), specifically stating that it is an ICWPA complaint. The ICIG then has 14 days to decide if the complaint pertains to an “urgent concern” and if it is credible.

I highly recommend the rest of McClanahan’s explainer if you really want to understand what the process dispute between the House Permanent Select Committee on Intelligence and the Acting Director of National Intelligence (DNI), the Department of Justice, and the White House over the Acting Director’s refusal to submit the Intelligence Community Inspector General’s report finding the complaint to be both urgent and credible to Congress.

The ICWPA does not actually protect Intelligence Community and national security whistleblowers. It also, contrary to Rachel Maddow’s hyper-enthusiastic statements during and after her interview with Congressman Schiff last night, DOES NOT PROVIDE THE INTELLIGENCE OFFICIAL OR OFFICER WITH ANY OTHER LAWFUL WAY TO GET THIS INFORMATION TO CONGRESS!!!!!!! Whoever the whistleblower is, she or he is not now entitled under the ICPWA to go directly to Congress because the Acting DNI, on the advice of the Office of Legal Counsel at DOJ and the White House, presumably the White House Counsel’s Office, have determined not to forward the Intelligence Community Inspector General’s findings to Congress as required by the Intelligence Community Whistleblower Protection Act. If this Intelligence official or officer tries to take the information that is the basis of his or her complaint directly to the House Special Committee on Intelligence, she or he will be in jeopardy for prosecution under the Espionage Act. Because it is not up to this Intelligence official or officer to determine if Congressman Schiff and the members of his committee need to know this information.

This Intelligence official or officer is not, under the law, a whistleblower. They are basically, at most, a lawful complainant about a counterintelligence and insider threat concerning the President to the Intelligence Community Inspector General. He or she has no protection under the law. And based on how the President and his surrogates are talking about her or him, and the reporting that “administration officials”, most likely the Acting Director of National Intelligence and his senior counsel, have shared additional information with the White House so they can determine if executive privilege should be invoked and asserted, it is highly likely that if the White House has not figured out who this Intelligence official or officer is, they likely have a short list of possibilities and will work it out sooner rather than later. Once that happens, this Intelligence official or officers life as they know it, not just their career, will be over. All for following the law. A badly written law that provides no actual protections for the person bringing the complaint. And it will all be done under the cover of law.

Open thread!

PS: DO NOT TAKE LEGAL ADVICE IN GENERAL AND LEGAL ADVICE ON NATIONAL SECURITY, CLASSIFICATION, AND/OR CLEARANCE ISSUES FROM RACHEL MADDOW. UNLESS YOU WANT TO GO TO PRISON FOR A VERY, VERY LONG TIME!

PPS: For a fuller, very technical treatment of this issue, as well as last night’s post, please check out my weekly column at The Ark Valley Voice. I focused on these issues for this week’s column.

PPPS: I did a slight editorial clarification to the fifth sentence of the final paragraph and added a new final sentence to the final paragraph of this post.

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The Counterintelligence Implications of the Intelligence Officer’s Whistleblower Complaint

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About an hour ago The Washington Post reported that the Intelligence official’s or officer’s complaint to the Intelligence Community Inspector General has to do with Ukraine.

A whistleblower complaint about President Trump made by an intelligence official centers on Ukraine, according to two people familiar with the matter, which has set off a struggle between Congress and the executive branch.

The complaint involved communications with a foreign leader and a “promise” that Trump made, which was so alarming that a U.S. intelligence official who had worked at the White House went to the inspector general of the intelligence community, two former U.S. officials said.

Much more at the link, but not much new information beyond the top line. What we don’t have are details, just some tantalizing hints. Given that the complaint involves something the President committed to do for a still undisclosed foreign leader and that it involves Ukraine, it is likely one of two things. Either he promised Putin something that had something to do with Ukraine, such as getting sanctions lifted and/or getting Russia readmitted to the G-7 making it once again the G-8, or he promised Ukraine’s President Zelensky something. Most likely that he’d free up the military aid in exchange for made up dirt on Vice President Biden’s son. Either way Putin will have signals intercepts of the call. Either because the call was with Putin and he recorded it or because Russia is actively collecting Signals Intelligence on the Ukrainians. Ukraine’s new president would be a primary target of such collection. It also likely means that the Estonians, the Latvians, the Germans, the French, the Norwegians, the Dutch, and several others most likely know the details as well as they are all collecting Signals Intelligence on Russia and Putin.

And this is where the counterintelligence concerns arise. The President’s unconventional approach to communicating with foreign leaders, outside advisors, and others, and his opposition to having these communications memorialized creates a counterintelligence problem for him and for the United States. This counterintelligence problem exists regardless what he may or may not have promised a foreign leader over the series of phone calls and interactions at the heart of the Intelligence official’s or officer’s complaint and whether or not it is good for the US and American interests. By getting rid of note takers, getting rid of readouts and summaries, either eliminating or extremely restricting transcripts of his phone calls and meetings, and by often using an unsecured cell phone, the President has made it all but impossible for officials in his own administration to actually document and know what he is saying to and hearing from the foreign leaders he is interacting with. This places the President, and by extension the United States, at the mercy of these foreign leaders. Right now we do not know with whom the President was speaking to in these phone calls, even as we now know it had something to do with Ukraine. But it would be a safe assumption that the foreign leader was making a recording of the call, as well as having a note taker making detailed notes. This provides that foreign leader with leverage over the President and the United States should he or she choose to use it because they can disclose as much or as little of the conversations and spin them however they want, while the United States’ government has limited, at best, information about the conversations and is therefore operating at an asymmetric disadvantage. The same problems exists for the President’s one on one meetings with Putin and Kim, where we also have no officially documented notes or transcripts on the US side of the meetings. And if you think that Putin and Kim didn’t record those meetings, I have a bridge and some beachfront property to sell you.

Right now we do not know which foreign leader the President spoke with, what, if anything, the President promised that foreign leader, and if the promise is good for the US’s national interest or bad for it. We do not even know how the Intelligence official or officer came to know this information. We don’t know if she or he was part of the limited chain of distribution for a transcript of the call. We do not know if he or she saw a Signals Intelligence Intercept of the call because we have that foreign leader under full time Signals Intelligence surveillance. We do not know if he or she was in the presence of the President when the phone call and the other, multiple activities that were reported occurred. But we do know one thing: the foreign leader in question knows what the President promised and, from a counterintelligence perspective, it is responsible to assume that foreign leader has a recording of the call, which gives that foreign leader leverage over the President and the United States. The President has compromised himself and the United States to the leader of a foreign power and that is the major counterintelligence problem that arises from this whistleblower’s complaint.

Open thread!

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The Day After Israel’s 2019 National Election Part 2: Everything Is Clear as Mud

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With 91% of the votes counted, we still have no really good or clear idea of what the actual election outcomes in Israel are going to be for the next government of Israel. Benny Gantz’s Kahol Lavan Party still has a one seat edge over Bibi’s Likud, with 32 to 31 projected seats. However, as night gave way to morning in Israel the potential coalition politics both got clearer and murkier at the same time. Both Ayelet Shaked who runs Yamina – basically what would happen if you gave Ann Coulter a political party – and the Joint Lists Ayman Odeh have both stated they’re headed to the opposition in the next Knesset. Shaked who is farther right than Bibi wants to present herself and Yamina as the new, better, younger, hipper, and more telegenic Likud against a potential national unity government. Odeh has stated that he wants to be the leader of the opposition. Avigdor Liberman, whose Yisrael Beytenu Party appears to have won 9 seats, is still calling for both a national unity government with Likud, Kahol Lavan, and Yisrael Beytenu.

Here’s the rub. If Shaked won’t support Bibi, then his potential coalition goes from 55 seats to 46 seats. But things get worse for Gantz. If Odeh won’t join or isn’t invited to join in a coalition with Kahol Lavan, Labor, and the Democratic Union, then Gantz’s potential 57 seat coalition drops down to 43 seats. This gives Bibi and his potential coalition more seats, which he’ll use to claim he should be given the opportunity to try to form the next government. Liberman has also said that he will not allow a third election to happen, but his non-negotiable demands, which include both excluding Odeh’s Joint List and that Bibi has to go, may be non-negotiable, but they may also be non-starters. Likud said last night that they were sticking with Bibi, though pressure will build to both keep him and pitch him over the side. It is unclear right now, how much control Bibi can exert to save himself right now, but he has just concluded a meeting with the other right wing parties and the initial reporting is he has shored up support among them, and he has a 55 seat coalition ready to move forward and try to form the next government.

Prime Minister Benjamin Netanyahu will make a press statement at 6 p.m., in about half an hour, following his meeting with the senior leadership of the Jewish Home, New Right, United Torah Judaism and Shas parties at his office.

The factions agreed to function as a “bloc” and conduct coalition negotiations together, Likud says.

A Likud source tells The Times of Israel that he is expected to announce the support of all the parties, which will control some 55 Knesset seats according to preliminary election results.

While not enough to form a coalition on its own, Channel 12 reports Netanyahu is hoping that Rivlin will consider the 55-seat bloc as a single party and therefore agree to task the premier with forming the next government for having a bigger faction than the standalone Blue and White party.

Given that Ayelet Shaked’s Yamina Party isn’t mentioned, I don’t see how he gets to 55 seats, but that’s the reporting.

Everything is now clear as mud.

Open thread!

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Israel’s 2019 National Election Part 2: The Revenge of the Son of the Update

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I really don’t think a whole lot more is going to happen between now and daylight tomorrow. At least not anything that’s going to happen in public. As of 9:10 PM EDT, they’d counted 10% of the ballots cast. So the vote counting has a long way to go. The exit polls, as they stand right now, are:

Kahol Lavan – Average: 32 seats; Channel 11: 32 seats; Chanel 12: 32 seats; Channel 13: 32 seats

Likud – Average: 31 seats, Channel 11: 31 seats; Channel 12: 32 seats; Channel 13: 30 seats

Joint List – Average: 14 seats; Channel 11: 13 seats; Channel 12: 13 seats; Channel 13: 15 seats

Yisrael Beitenu – Average: 9 seats; Channel 11: 9 seats; Channel 12: 9 seats; Channel 13: 8 seats

Shas – Average: 9 seats; Channel 11: 9 seats; Channel 12: 9 seats; Channel 13: 9 seats

UTJ – Average: 8 seats; Channel 11: 8 seats; Channel: 7 seats; Channel 13: 8 seats

Yamina – Average: 7 seats: Channel 11: 7 seats; Channel 12: 7 seats; Channel 13: 6 seats

Labor – Average – 6 seats; Channel 11 – 6 seats; Channel 12: 6 seats; Channel 13 – 6 seats

Democratic Union – Average: 5 seats; Channel 11: 5 seats; Channel 12: 5 seats; Channel 13: 6 seats

Otzma Yehudit – Average: 0 seats; Channel 11: 0 seats, Channel 12: 0 seats; Channel 13: 0 seats

So while Kahol Lavan maintains a slight lead in taking the most seats, the issue now will be how the actual vote tabulation turns out and who will be able to form a viable coalition. Using the averages, right now Gantz can potentially put together a 57 seat coalition if he can get the Joint List, Labor, and the Democratic Union to support him. Bibi can potentially put together a 55 seat coalition by partnering with Shas, UTJ, and Yamina. This leaves Yisrael Beitenu, and more specifically, Avigdor Liberman as the king maker. The Joint List, which is a combination of Israeli Arab and left of center pro-peace Israeli Jewish parties, also has tremendous leverage. In April they made it clear they would not enter into a coalition government. Hopefully, they recognize that they have leverage right now and should use it in negotiating with Gantz. Regardless, neither Bibi nor Gantz can meet the 61 seat threshold until/unless Liberman makes his play.

In his speech tonight Bibi stated he’d form a Zionist, anti-terror coalition to form the next government. According to reporting Gantz has also begun working the phones. Tomorrow will tell us whether Bibi can once again eke out victory from defeat either by pulling enough seats from Yisrael Beitunu despite Liberman’s seeming opposition to him or by repeating what he did in April when neither he nor Gantz were able to assemble a 61 seat governing coalition. Vacating the election and calling for a third try is his back up play. It allows him to stay in place as the prime minister over a caretaker government for five or six more months and both maneuver to increase his chances and bide his time looking for an opportunity to solidify his position. Remember, Gantz would like to be prime minister. For Bibi, however, it is existential. He either stays on as prime minister or he faces prosecution and potentially prison.

Updates at 11:15 PM EDT

The Times of Israel is reporting in its live blog of the election and vote counting that:

22min ago

Channel 12: Unofficial tally of 85% of votes shows Knesset deadlocked

Channel 12 is reporting results it says it has received from inside sources in the Central Elections Committee, which the news channel claims reflect around 85% of the national vote.

According to those unofficial results, Likud and Blue and White are tied at 32 seats; next is the Joint List with 12 seats; Shas and Yisrael Beytenu have 9 seats each; United Torah Judaism has 8; Yamina has 7; Labor-Gesher is at 6; and the Democratic Camp has 5.

The right-wing bloc has a total of 56 seats, the center-left has 55 and Liberman has 9.

Channel 12 explains its data on the fact that a large majority of votes have already been counted, but due to increased scrutiny, the CEC is doing recounts in order to ensure the information it puts out is accurate.

Also, Noga Tarnopolsky’s and Barak Ravid’s reporting from Bibi’s speech at the Likud election party is disturbing:

My take on this is that if Bibi does come up short, he will try to make the claim that a Kahol Lavan coalition that includes the Joint Lists’ Arab parties and Israeli Arab members is somehow illegitimate. And then try to leverage that to remain in power. That’s right in his wheel house.

Open thread.

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