Sen. Rand Paul (R-Ky.) speaks at a news conference with Sen. Patrick Leahy (D-Vt.) and Sen. Ron Wyden (D-Ore.) about proposed reforms to the Foreign Intelligence Surveillance Act in the Russell Senate Office Building on January 16, 2018. (Chip Somodevilla/Getty Images)
This week, Just Security‘s editorial board members published succinct, analytic Twitter threads on national security topics ranging from Steve Bannon’s House Intelligence testimony, to the Mueller investigation, to how FISA 702 surveillance works and doesn’t work. To make things easier for our readers, we’ve collected and curated the first tweet of select threads by our editors below. Click on each tweet to access the whole thread.
Executive Privilege and Bannon’s House Intelligence Committee Testimony
Editor Renato Mariotti writes on the House Intel Committee’s decision to delay Bannon’s second testimonial hearing until later in this month. And editor Andy Wright examines the potential for the White House to invoke executive privilege even if a witness, such as Bannon, does not — possibly through the use of an injunction. Mariotti also writes about the ethics of Bannon’s lawyer transmitting Hill investigators’ questions to the White House in real time, and Bannon’s deal with the Mueller investigation to be interviewed in front of prosecutors rather than the grand jury.
No Steve Bannon before House Intel today after committee agrees to delay his return until later in the month, @KaraScannell reports
— Manu Raju (@mkraju) January 18, 2018
1/ This is a victory for the White House. They directed Bannon not to answer questions until they decided what statements they think are covered by executive privilege, which is improper. https://t.co/djjiKlNOpF
— Renato Mariotti (@renato_mariotti) January 18, 2018
Great write-up, Andy. Curious if there is any legal authority that speaks to a scenario where WH wants a former official to claim executive privilege but they refuse. Is there crim or civil liability for refusing to invoke? Could they be enjoined?
— Benjamin Adams (@BenAdamsO_O) January 18, 2018
There’s no criminal liability but the injunction question is murkier. In US v. AT&T (DC Cir 1977), DOJ sued to enjoin AT&T from complying w/ a congressional subpoena. Court promoted negotiation but ended up ordering district court to referee the final status. 1/
— Andy Wright (@AndyMcCanse) January 18, 2018
1/ Based on this @axios article, the White House is abusing its ability to assert executive privilege. Bannon reportedly refused to talk about *anything* during his time at the White House. Executive privilege doesn’t shield everything he saw or heard. https://t.co/MYxaD8ppTE
— Renato Mariotti (@renato_mariotti) January 17, 2018
THREAD: Was it unethical for Bannon’s lawyer to transmit questions to the White House in real time? (Short answer: Probably not.) https://t.co/kH98ZpoJKS
— Renato Mariotti (@renato_mariotti) January 17, 2018
1/ Some of you asked if this is unethical, and it probably wasn’t, based only on what we know. Bannon’s lawyer can cooperate with the White House’s request to assert privilege if Bannon wants to, and his vigilance in doing so in real time suggests that he’s on their team.
— Renato Mariotti (@renato_mariotti) January 17, 2018
Former White House chief strategist Steve Bannon has struck a deal with special counsel Robert Mueller’s team and will be interviewed by prosecutors instead of testifying before the grand jury, two people familiar with the process tell CNN https://t.co/6tkmAzGGD2
— CNN (@CNN) January 17, 2018
1/ This is what we would ordinarily expect to happen. Usually it’s in the interest of both sides for prosecutors to conduct an informal interview. https://t.co/QePwbZb4QP
— Renato Mariotti (@renato_mariotti) January 17, 2018
THREAD on resources for Steve Bannon’s Executive Privilege dispute with HPSCI:
For caselaw history see p. 946-957 of my law review article Constitutional Conflict & Congressional Oversight: https://t.co/N4bnRS4xBm 1/
— Andy Wright (@AndyMcCanse) January 17, 2018
FISA Section 702 Surveillance, Privacy, and the Mueller Investigation
Editor Asha Rangappa writes about how it would work if the FBI were to try to obtain information about Trump campaign aide George Papadopoulos’ conversations with an Australian diplomat through FISA Section 702 surveillance. She also writes about information sharing between the CIA and the FBI, how it changed after 9/11, and how that might implicate 702.
Taking a different view, Editor Julian Sanchez writes about the general privacy implications of FISA Section 702 surveillance’s incidental collection.
Is it fair to say IC picked up a great deal of #Mueller investigation info via 702?
— Christopher Suprun (@TheChrisSuprun) January 14, 2018
THREAD. Obviously I don’t know, but I would imagine so. To use an example, consider when Australian intelligence let he FBI know that George Papadoplous had let it slip to their diplomat that he had been in contact with a Russian cutout. https://t.co/cefa5wOBXW
— Asha Rangappa (@AshaRangappa_) January 14, 2018
Isn’t this part of the problem we had on 9/11. We had some info in different places that couldn’t be shared. I know I’m grossly over simplifying and and not in legal community. Just intellectually curious.
— Terry Banet (@tebsf) January 14, 2018
THREAD. *YES* The current system is a direct response from the 9/11 Commission which reprimanded the IC (and specifically the FBI and CIA) for not playing nicely together in the sandbox. They wanted a system where intel could be shared quickly and easily among the IC. https://t.co/vr3nQIdyPg
— Asha Rangappa (@AshaRangappa_) January 14, 2018
Wait until privacy advocates find out that literally hundreds of thousands of innocent Americans communications are collected….. under Title III wiretaps. Idea that focusing on the target is some kind of sleight of hand is preposterous. https://t.co/LjLwrqESNh
— Susan Hennessey (@Susan_Hennessey) January 16, 2018
This is a popular move, but it doesn’t survive scrutiny. Incidental collection under particularized, probable-cause “superwarrants” subject to realtime minimization is very different from incidental collection pursuant to a general warrant dumped in a searchable database. https://t.co/l48XuLC3ee
— Julian Sanchez (@normative) January 17, 2018