- Show Notes
In this Stay Tuned special bonus, national security experts Lisa Monaco and Ken Wainstein discuss the latest news stories that aren’t about impeachment: Coronavirus, encryption, and the controversy over Carter Page FISA warrants.
Lisa Monaco served as Advisor to President Obama for Homeland Security and Counterterrorism from 2013-2017. A former federal prosecutor, Monaco spent 15 years in the Justice Department in various DOJ and FBI leadership positions—including Counsel to and Chief of Staff at the FBI for then-Director Robert Mueller. In 2011, Monaco was the first woman to serve as the Assistant Attorney General for National Security.
Kenneth Wainstein served as Advisor to President George W. Bush for Homeland Security and Counterterrorism from 2008-2009. Wainstein served as the first Assistant Attorney General for National Security at DOJ, and led the new National Security Division in the wake of 9/11. A former federal prosecutor, Wainstein spent 19 years in the Justice Department and also served as General Counsel, and then Chief of Staff to then-Director Robert Mueller.
REFERENCES & SUPPLEMENTAL MATERIALS
- Coronavirus Live Updates, New York Times
- “Trump sticks embattled health chief with coronavirus response,” Politico, 1/30/20
- “195 Quarantined in California After Fleeing Coronavirus Epicenter,” New York Times, 1/31/20
- “How a ‘Czar’ Fights a Disease,” Politico, 1/19/15
- Clip: Cybersecurity, Encryption and United States National Security Matters Hearing before the Committee on Armed Services United States Senate, 9/13/16
- Clip: Attorney General Barr on Encryption Technology and Law Enforcement, 10/4/19
- Clip: Encryption and Lawful Access: Evaluating Benefits and Risks to Public Safety and Privacy, Senate Judiciary Committee, 12/10/19
- Valerie Caproni’s Statement Before the House Judiciary Committee, Subcommittee on Crime, Terrorism, and Homeland Security, 2/17/11
- “A Year After San Bernardino And Apple-FBI, Where Are We On Encryption?,” National Public Radio, 12/3/16
- The Foreign Intelligence Surveillance Act of 1978 (FISA), Legal Information Institute
- Fourth Amendment, Legal Information Institute
- Judge James Boasberg’s Order Regarding Handling and Disposition of Information regarding Carter Page, filed 1/7/20
- DOJ’s Office of the Inspector General Review of Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane Investigation, December 2019
- FBI Director Chris Wray’s response in regards to “Accuracy Concerns regarding FBI Matters Submitted to the FISC,” 1/10/20
- David Kris’ amicus brief, “Accuracy Concerns regarding FBI Matters Submitted to the FISC,” 1/15/20
- Clip: Attorney General Barr and FBI Deputy Director Bowdich Hold Press Conference, 1/13/20
- Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, “The Church Committee”
- “Justice Dept. Says Facts Did Not Justify Continued Wiretap of Trump Aide,” New York Times, 1/23/20
Preet Bharara: Hey folks, today we have a special bonus episode of Stay Tuned. In the crazy impeachment news cycle, many important national security stories seem to have gotten lost. So I asked two of my good friends, Lisa Monaco and Ken Wainstein who know more about this stuff than just about anyone to get together kind of like Ann and I do every week and make sense of what’s happening. Lisa and Ken are both longtime public servants and interestingly, they’ve held the same set of hugely important jobs in law enforcement and national security. They were both federal prosecutors in DC, both served as chief of staff to FBI director of Bob Mueller. Both went on to lead the national security division at the justice department. In fact, Ken was the first person to have that job when it was created after 911, and then both served as Homeland and counter terrorism advisers to the president. Ken to President George W. Bush and Lisa to President Barack Obama, during which time one of her many responsibilities was to coordinate the response to the Ebola outbreak.
Preet Bharara: Lisa, of course, has been a guest on Stay Tuned before. So I’m excited they’ve agreed to debrief us on several important issues making the headlines, including the coronavirus, encryption and the controversy over the Carter Page FISA warrants, members of Cafe Insider can hear Lisa and Ken’s full conversation and access other exclusive content, including my weekly podcast with Anne Milgram at cafe.com/insider. That’s cafe.com/insider. I hope you enjoy this special edition of Stay Tuned and be sure to catch this Thursday’s regular episode with my guest John Dickerson, who’ll help us break down the latest shade of crazy in the world of politics.
Lisa Monaco: Good to be with you, Ken. Good to be here talking to you about something that is not impeachment related.
Ken Wainstein: Amen. I think I’m up to the eyeballs on impeachment and radio back to national security.
Lisa Monaco: Exactly right.
Ken Wainstein: We do actually have the very similar backgrounds and that we spend a good bit of time, the justice department. Seeing the world from a law enforcement perspective largely, and then post 911 sort of moving more into the national security world as the priorities of the day dictated and the focus in the justice department moved over toward counter terrorism and the threats from nation states and the like. And so both of us sort of move more into that area and then ended up in the white house doing an inter agency process.
Lisa Monaco: Not together though, because that office wouldn’t have fit both of us probably.
Ken Wainstein: Yeah, it was like a closet.
Lisa Monaco: We’re sitting here having been asked by pre to get together and spend a little time on issues that frankly I think this, and I don’t know what you think Ken, but there’s a bunch of issues I think aren’t getting enough attention these days.
Ken Wainstein: Absolutely. And it’s too easy to get focused or remain focused all the time on the most politically controversial matters that are going on and playing on the front pages and forget about some of the really important national security issues that are often lurking behind those headlines.
Lisa Monaco: So as we sit here today, the number of cases of the coronavirus are exploding exponentially. Actually, we’ve got lots going on when it comes to the intelligence community and questions of whether or not they should be giving their annual worldwide threat assessment actually in public. And there’s some indications that some of the intelligence community leaders don’t want to do that for fear potentially of angering the president. Lots of controversy around the FISA process and the encryption issue is back in the news. So lots of stuff to cover.
Ken Wainstein: If I could start and actually first look to you on the coronavirus, Lisa, you handled Ebola when you were at the white house, so I think you got up close and personal with these issues involving the outbreaks.
Lisa Monaco: Luckily not that personal with Ebola, but now look the news about the coronavirus. Firstly I guess we should talk a little bit about what is it and should people be worried about this? And one of the things that I think we see particularly now coming out on a lot of these stories about the coronavirus and we saw happen in 2014 when the Ebola scare happened, and the bullet pandemic happened is it’s really hard to separate out fact from hysteria quite frankly.
Lisa Monaco: And that was a big problem with Ebola. So the coronavirus, everyone now has probably heard about this and seen a lot of news reports. It’s a new strain of virus coming out of China and it is basically a flu like illness. It has spread really exponentially. It looks like it was started and came from a bat actually, and then ultimately has now shown that it is spreading from human to human, which is what’s really, really scary. And now the focus in the last couple of days has turned to what is the US government doing about it? And I know from my experience that a lot of attention got paid at the beginning of the Ebola scare in 2014 with how’s the government organized? Who is in charge? I mean, you know from your own experience, whenever there is a big security crisis, whether it’s a terrorist attack, whether it’s a natural disaster or a pandemic event, the question very quickly turns to, who’s in charge?
Lisa Monaco: You were President Bush’s Homeland security advisor. I think you all handled it in a similar way as president Obama did, which they said that Homeland security advisor, the job you had for president Bush and the job I had under president Obama, this issue fell squarely in my responsibilities.
Ken Wainstein: Same with me. And same with my predecessors in the Bush white house. And maybe just to step back for a second, Homeland secure advisor still exists. That position still exist. It’s been reconfigured under the Trump administration. But for both the Obama and Bush administration is we had a portfolio that covered counter-terrorism, general nature of the threat being any threat to the Homeland, but that covered terrorism, pandemics, pandemic planning, continuity of government, continuity of operations in the event of a crisis, port security. And then as you mentioned, dealing with natural disasters. So it was quite a range of issues.
Lisa Monaco: People listening to this discussion might understand why President Obama had a nickname for me.
Ken Wainstein: What was that?
Lisa Monaco: He called me Dr Doom. I know it’s kind of surprising.
Ken Wainstein: It doesn’t make you feel welcome when you walk into the oval office and the president calls you Dr Doom.
Lisa Monaco: No, he tended to say it with a smile.
Ken Wainstein: That makes it okay.
Lisa Monaco: But it turns out, every time I talked to him, every day, every morning, I would meet with him as I know you met with President Bush every morning as part of the president’s daily briefing. That morning meeting where we would talk about the issues of the day, the biggest crisis facing the country from a national security and Homeland security perspective. And unsurprisingly, I never had good news to tell him.
Ken Wainstein: That’s not our job.
Lisa Monaco: No, it was never my job. So he took to calling me Dr Doom because I came in talking to him about Ebola or terrorist attacks or cybersecurity threats.
Ken Wainstein: What was your nickname for President Obama? Come on pretty, tell.
Lisa Monaco: That’s classified?
Ken Wainstein: No, come on. Leak. We want a tribute to you promise.
Lisa Monaco: Just between you and me?
Ken Wainstein: Yeah just between you and me-
Lisa Monaco: Right here today.
Ken Wainstein: And a few thousand podcast listeners. You and I coming from a similar background as you know, a law enforcement person and a national security person focusing mostly on counter terrorism. I don’t know about you, but it was a steep learning curve when I walked in the white house and somebody had to learn about the statues governing federal assistance to natural disasters or how to deal with the public health issues presented by an outbreak.
Lisa Monaco: And you got to be doing a bunch of things now to make sure that you do contain and minimize the impact here. So how prepared are we today? I guess I had answered that in a few ways. Organizationally, at the federal government level, the secretary of health and human services oversees, the public health service. Right now that’s secretary ASR. That’s a big job for the secretary of health and human services. So you would think, okay, that job falls to that person, that cabinet department. But the reality is something like a bowl of something like this response. This needs to be government wide. It’s not just a question of what are the medical facts. There’s lots of questions about travel. How do you deal with screening, incoming passengers? A lot of people listening to this probably have seen the pictures on the news about incoming passengers, travelers from China or other places being checked, having their temperature taken as they get off the plane to see if they might have a fever and might show signs of infection.
Lisa Monaco: All of that has got to be coordinated with the department of Homeland security, with the folks who deal with customs, who deal with the border. They have to be coordinated with the local officials wherever that airport is. So it is a big, big undertaking and isn’t confined to just one department or one agency. It really takes what we call a whole of government response and that’s why in my experience during when Ebola was really escalating, there was a big controversy over whether or not the president should appoint a ‘czar’ it seems like every problem at some point, whether it’s people in Congress or on the news start saying, well, who’s the czar? Who’s the person in charge? And frankly, some of that I think is political posturing sometimes, but there’s actually some, a good bit of wisdom around the question, whatever you call it, whether you call it a czar or not.
Lisa Monaco: At a certain point, a problem becomes so complex and so wide ranging that you need one person who can focus his or her attention 24/7. And that’s what we decided in Ebola. And so President Obama appointed Ron Claims. Someone you and I both know to be the Ebola response coordinator so that he could focus 100% of his time on coordinating from the white house across the inter agency across the different departments and agencies. Thus far, there has been no one who’s been assigned to be a coronavirus 2019 czar. I think the latest news we’ve got coming out of the white house is that there has been a task force appointed, led by secretary ASR, the secretary of health and human services with a number of other cabinet secretaries who are on that task force and that the national security council in the white house is coordinating the work of this task force. But that’s being done by the deputy national security advisor.
Ken Wainstein: The question of whether you rely on the NIC to do it or appoint a czar can have very real life implications in terms of how well a crisis response is rolled out. So one quick question. You hear about people being quarantined, which sounds to me like you’re taking oftentimes US citizens or citizens of foreign lands who have rights, who presumably can be mobile and go wherever they want and they’re being told by force or threat of coercion that they have to stay in one place. Is there a legal construct in our laws, state and federal laws for that action? And is that something that’s happening here?
Lisa Monaco: Yes. So people will be surprised to learn that actually in a public health emergency, local officials and federal public health officials have a significant amount of authority. So in fact right now in the last couple of days, people may have seen a story about, there’s over a hundred people now who are being quarantined, for lack of a better word, in Riverside, California. Where a number of people who’ve traveled back, who’ve come out of China where the virus started have returned to the United States. But there’s concern among public health officials and local officials that they could still be within the incubation period. The period, it’s about two to 14 days during with this virus that they could still be contagious. So the local officials have the authority to keep them in one place so it doesn’t compound the spread of the disease.
Ken Wainstein: That’s sobering and even more sobering if you sort of extrapolate that out and think about human-human contact here in the United States. I mean these are just the people who came in from China. Now what happens when people get exposed here and that population grows here. Could you see quarantines being done at a much more mass scale than a hundred and whatever it is now?
Lisa Monaco: Yeah.
Ken Wainstein: So sobering and shows you the lengths that the government needs to go to try to protect the society from these kinds of bugs.
Lisa Monaco: Another issue Ken that I noticed in the news of late is I guess you might say an oldie but a goodie or not so goodie and a not so oldie, but is the issue of encryption. You and I both dealt with this in multiple incarnations I think when we were chief of staff at the FBI when we were in the justice department heading the national security division at different times. And then of course in the white house and it’s a perennial issue that only seems to be getting more complicated and a harder one to solve. And it just got into the news again in the last week or so with attorney general Barr really staking out a pretty hardcore position.
Speaker 3: We think our tech sector has the ingenuity to develop effective ways to provide secure encryption while also providing secure legal access. And it’s well past time for some in the tech community to abandon the indefensible posture that a technical solution is not worth exploring and instead turn their considerable talent and ingenuity to developing products that will reconcile good cyber security to the imperative of public safety and national security.
Ken Wainstein: This was in the aftermath of the shooting down in Pensacola that the FBI has determined it was a terrorist attack and the fact that the government was not able to get into the phone or phones that were owned by the shooter to try to find out whom he was in touch with, he was dead. He was killed on the scene, but of course you want to know who his confederates were, who might’ve been providing them support? Who might’ve been casing the location out. All the kind of questions you would have not only as an investigator, not only to prove up the crime, but also in this case to find out if there’s anybody else out there who is looking to do further crimes or further terrorist attacks. But this issue, as you said, is a perennial issue and it goes back in various forms, decades, but in sort of modern times, it’s gotten the terms, the term for it has been coined as going dark.
Ken Wainstein: And the idea is that for one reason or another, and in this case it’s encryption, the government’s ability to surveil, in other words, to intercept over here wiretap communications by phone or by email or chat, electronic communications, their ability to do that gets narrowed for one reason or another. And some parts of the spectrum of communication becomes unavailable to the government. And our old friend Val Compony, who was the general counsel, the FBI for many years.
Lisa Monaco: Now a judge.
Ken Wainstein: Now a judge.
Lisa Monaco: Southern district of New York. Your old office.
Ken Wainstein: Did tremendous God’s work for many years with Bob Muller in the aftermath of 911. She testified before Congress about this issue of going dark. And at that point in the middle [inaudible 00:15:16] I remember, it was the concern that with the diffusion of different telephone and email provider services around the world and not just like one or two bell and AT&T or whatever.
Lisa Monaco: You’re really dating yourself there, can saying bell.
Ken Wainstein: I’m looking for the telephone with the cord attached to the wall. Back then when there were just a few players, it was easy for the government to feel confident that they could go to that phone company, back then phones, and those companies would have the ability, the technological ability and the willingness to cooperate and if they had a warrant for a wiretap, provide the wiretap to the government. But then with more and more providers coming on the scene around the world, a number of those providers weren’t able to provide those services or were unwilling to provide the services. And as a result, a lot of communications, many of which might’ve been terrorist talking to each other were unavailable to government. And so that was the going dark problem back then. That problem became exponentially worse with the advent of end to end encryption and with the iPhones and an encryption that for perfectly valid reasons to protect people’s communications, great for cybersecurity, great for prevention of crime.
Ken Wainstein: Malicious hacking and the like, but maybe not so great for the government’s ability to get communications. And keep in mind, when you’re investigating any kind of criminal activity that involves more than one person, any kind of conspiracy, whether it’s to rob a bank or to sell drugs or to commit a terrorist attack. The best evidence and the best way to find out what those people are doing and then hopefully head that off, is by getting their communications.
Ken Wainstein: So it’s really a vital piece of vital part of the government’s arsenal, especially against terrorists. With this end to end encryption that became more and more problematic and then going dark became a bigger issue. And then that came to a head after the San Bernardino shootings.
Lisa Monaco: In 2015, I remember that.
Ken Wainstein: So 2015?
Lisa Monaco: Quite vividly, where you had the two terrorist actors, man and his wife, who basically conducted a massacre at a workplace gathering in 2015. And it was about 14 people I believe were killed and the shooters died in the aftermath of the attack and the FBI couldn’t get into the terrorist phone. And it became a big flashpoint between the FBI at the time. Jim Comi was the director and Apple who obviously made the phone and this question of should the company be compelled to cooperate with the FBI?
Lisa Monaco: And maybe we should step back here. When you talk about end-to-end encryption, I mean that is quite literally when only the sender of the message and the receiver of the message can read the communication between the two individuals. That’s it. Nobody else can get in to that communication. And that’s the challenge posed by the proliferation of encryption. But as you say, it also provides tremendous benefits when it comes to securing things like financial information or health information as well as private communications between people, all of which we now carry around in huge amounts on these little devices that we carry around in our pockets, so.
Ken Wainstein: It’s a fascinating study of a class of values. Every time you consider a national security authority, a tool, an investigative tool, and whether Congress is considering adopting one in the first place or expanding or strengthening one, you’re always balancing the incursion into privacy against the national security need for that tool. And for that investigative power. Here it’s a little bit different calculation because here the presumption is that the government is going to have the full authority, whether it’s a search warrant, whatever process from a judge that they need. So there is no fourth amendment issue here about whether they’re authorized to get that access. It’s, as you said, whether they’re able to, physically able to, and then it shifts in terms of the clash of values to a clash between that national security or law enforcement need to get that information as balanced against the cybersecurity need for that encryption. The amount of protection that encryption provides for you and me and everybody else who has basically all of our lives on our cell phones. And so that’s a really difficult balance to strike.
Lisa Monaco: In other words, this debate has been, there can’t just be an ability for law enforcement to access that information without weakening the entire system such that it is more susceptible to the bad guys being able to access.
Ken Wainstein: Which seems like a very real concern. And actually I think the reason that that debate never came to closure, that it never got resolved after 2015 and was still unresolved when the Pensacola shootings happened was because both sides took a sort of more absolutist view of things.
Lisa Monaco: Yeah, I think there’s signs that there is now going to be some more movement on this issue. I don’t know quite frankly where that’s going to go, but the justice department seems to be staking out a position. I think Barr recently said or sent a letter saying, “You’ve only got so much time tech companies to deal with this. Otherwise we’re going to… We’re racing against the clock.” I’m paraphrasing here. And I think Lindsey Graham, who’s the chairman of the Senate judiciary committee, which would have jurisdiction over any legislation that might deal with this issue, has come out and said similar things saying.
Lindsey Graham: And I’m not about to create a safe haven for criminals where they can plan their misdeeds and have information stored in a fashion that law enforcement can never be allowed to access it. How we do this, I don’t know. I hope the tech community working with law enforcement can find a way to do it. If y’all don’t, we will.
Lisa Monaco: So there’s some sign that there’s some movement. What do you make of that? Do you think there’s actually going to be? I realize that progress Congress and legislation are three words that should never probably be said in the same sentence but.
Ken Wainstein: I can tell you, I can go back to whatever it was 2015, 2016 I actually testified once or twice on this issue up on Capitol Hill and I heard some of the same statements made then that we need to resolve this, we need to resolve this fast and people shouldn’t drag their feet. In fact, I remember one time testifying with a Cy Vance from New York. He spoke about-
Lisa Monaco: The district attorney in manhattan?
Ken Wainstein: Yeah, the district attorney, and you mentioned earlier the state and local folks are really suffering here because they’ve got a lot of cell phones from rape cases, murder cases, whatever they can’t get into. Anyway, he spoke to that issue. I spoke to the national security perspective.
Barr: As my colleagues have made clear, we’re in the midst of a national debate over the implications of default encryption. And this is debate which has been going on for the better part of two years. And we now find ourselves at really what is a complete impasse. And it’s time. I urge for Congress to step in and break through that impasse.
Ken Wainstein: And I remember John McCain and others saying some of the things back then, but everything kind of died out.
Lisa Monaco: And then you had the whole economic and trade dimension. So there are a lot of voices in these debates that say, Hey, if we try and pass legislation to mandate that companies have to build their products in a certain way, that’s really going to stifle innovation on American companies, it’s going to put them at a disadvantage in world markets. And we really need to think twice before we do that. And frankly, given the global nature of commerce and the flow of data that is so important across borders, do we really want to be imposing restrictions or from a legislative perspective on companies such that they’ll just decide to take their business elsewhere? I mean, that’s where the debate has been. So it is really, really complicated.
Ken Wainstein: I mean, just as you mentioned, the international dimension, well, we might be able to legislate as it relates to American companies and the products here in United States, but that doesn’t necessarily bind companies overseas and the industry, the tech industry has made that point, made very effectively because it’s a legitimate point. Could that just move terrorist communications and criminal communications off of the systems and devices from American companies into sort of far-flung companies overseas, which would mean they’d be dark to the federal government anyway and it would have the economic impact on American companies no longer having that business. So it’s a tough issue all the way around. And in terms of prospects for resolution, all those complexities are still there.
Lisa Monaco: We didn’t discuss one of the other objections and concerns with building in a capability for law enforcement to have access in the hands of authoritarian government. What does that mean for the security of communications amongst dissidents or human rights activists in a country that doesn’t honor those rights? We have to think about this problem in a really multidimensional way. The other thing I’ve been surprised about recently can is how much attention, something that used to just be the province of an incredibly nerdy set of people, how much attention something called FISA has been getting.
Ken Wainstein: And those nerdy people would include us of course.
Lisa Monaco: They would be certainly include you.
Ken Wainstein: Guilty as charged.
Lisa Monaco: So what is with all this focus on FISA, FISA of course stands for the foreign intelligence surveillance act.
Ken Wainstein: And this relates to what we talked about in the encryption in regard to the encryption issue, which is the government’s ability to intercept, surveil wiretap communications. And just to give a little history, human communications have always been a critical part of any criminal investigation. And back in the old days, the government would intercept letters or get eye witnesses, or ear witnesses to testify about communications between bad guys.
Ken Wainstein: And then with the advent of the telephone, of course a lot of those communications started being carried over telephone lines and the government had within its sole discretion to wiretap the phones and they had an internal executive branch. The process for getting authority to do that, courts weren’t involved at all in that process up until the late sixties and then there’s a Supreme court decision that said that people have reasonable expectation of privacy in the content of their communications over telephone calls. And so therefore the government of the fourth amendment had to go to the judge and have a judge find there was probable cause to believe that there was a crime taking place or would take place and that the communications that the government wished to intercept related to that criminal activity.
Lisa Monaco: But everything you’re talking about there, that applies to drug deals, the mafia, right, murder schemes, all your criminal conduct.
Ken Wainstein: Right. And the majority of this, of wiretapping, as I just described, is done in the United States in regard to criminal investigations. In the late sixties, the Supreme court rendered that decision and then Congress passed the law in 1968 that laid out a process by which the government had to go to a federal judge. The government being the justice department have to go to federal judge and get authorization before wiretapping somebody in a criminal investigation. But both the Supreme court and the federal legislation from 1968 left open the question of what the executive branch needed to do in order to wiretap somebody for national security purposes.
Lisa Monaco: So if you’re a spy, even everything you’re talking about, if you were a spy coming here from a foreign government, coming here to collect secrets, conduct espionage, it was basically wide open field for the FBI to surveil you. They didn’t have to go to a court up until 1978 right?
Ken Wainstein: Exactly. And the idea was the president has primary authority to protect against threats from outside the United States. So this is a spy from a foreign government or a spy from a foreign terrorist organization. Yeah, it’s within the president’s prerogative to wiretap and investigate that person. And he or she didn’t need to get approval from any judge.
Lisa Monaco: [inaudible 00:28:06] he?
Ken Wainstein: There wasn’t, it’s always been Hazel. So 1978-
Lisa Monaco: But that changed in 1978? Why?
Ken Wainstein: That changed, and changed for number of reasons, but primarily because in the early seventies back, well before you were born even, and I was in my forties-
Lisa Monaco: Not quite but-
Ken Wainstein: … and in the early 1970s there were a couple of the church committee and the pike committee, which were the sets of hearings that disclosed a number of abuses that had been committed by the intelligence community, the FBI and the CIA and others intercepting telegrams and wiretapping, Dr. Martin Luther King, this kind of thing.
Ken Wainstein: And anyway, as a result, there were a number of reforms put in place to prevent those kinds of abuses. And one of the main ones was the foreign intelligence surveillance act, which was passed in 1978, passed by Congress. Agreed to by the administration. The president obviously signed it, but also the administration didn’t object to it as a matter of separation of powers. They agreed to it and it’s set up what’s called the foreign intelligence surveillance court, which is a court here in DC of federal judges. And those judges will review like a federal judge looking at an application for a wiretap and a criminal investigation. They’ll review applications from the federal government to do foreign intelligence wiretaps of telephones or emails or texts or what any other electronic communication. And the government’s obligation under the statute is to demonstrate probable cause. Not that a crime has been committed or is being committed, but rather that the person they want to surveil or intercept is a foreign power or an agent of a foreign power.
Ken Wainstein: In other words, representative of foreign government, agent of that government or it could be a US person who’s working on behalf of the federal government or on behalf of the foreign terrorist organization. And if the government is able to establish probable cause that the person they want to surveil is an agent of a foreign power, then the foreign intelligence surveillance court gives an order to the government that authorizes them to go and go to the phone company or the provider and get that interception put in place. And it’s all done in secret because these are the most sensitive national security investigations that we have. That’s the process that got stood up in 1978 and it’s still in place now
Lisa Monaco: And it’s gotten very, very controversial, just in the last few weeks really. And this all flows from the fallout really from the FBI’s investigation into the 2016 election and allegations of Russian influence into the Trump campaign. And there was a recent report by the justice department’s inspector general, so basically the internal watchdog for the justice department who said, you know what? There’s a lot of controversy swirling about this. We’re going to take a look at just what the FBI did in starting this investigation into potential Russian influence into the 2016 presidential campaign where the FBI used exactly some of these tools that you just were describing, including on a US citizen.
Ken Wainstein: Inspector general. He went back and looked at a number of aspects of this investigation, this counterintelligence investigation that was kicked off in the summer of 2016 into the Trump campaign. The two main ones I think would be worth addressing here are the use of FISA in that investigation and also frankly just the decision to start that investigation in the first place in terms of FISA. And they looked at the process that the FBI and the justice department followed in determining whether there is sufficient predication to get a FISA against Carter Page who had been with the Trump campaign. And they had evidence or the intelligence that suggested that he might be operating on behalf of the Russians during the campaign. And they were able to establish to the satisfaction of the FISA court probable cause that he was in there by got a FISA order and was able to surveil him.
Ken Wainstein: It had to be renewed on a regular basis, I think every 90 days I believe. And it was renewed three times. The inspector general went back and did a very in depth study of the process that led up to the issuance of each of those orders and found real problems, problems with accuracy of the information that was put in the affidavit that was given to the FISA court to demonstrate probable cause. That Carter Page was an agent foreign power, in one case, what seems to have been an intentional effort by an FBI attorney to provide false information and it was a pretty damning report. Not on the question of whether this was or wasn’t a witch hunt, but as to whether the FBI process was being handled the right way or if things were sloppier than they should have been.
Lisa Monaco: I don’t know if you had the same reaction I did. I suspect you did. Which was real disappointment in seeing the omissions, the significant omissions and inaccuracies. That’s how the inspector general characterized it. Significant emissions and inaccuracies in what had to be amongst the most important and most scrutinized FISA application going on at the time. One that bears on an investigation into a presidential campaign. So you had the same job that I did, which was to sign off on a lot of these FISAs over the years. The process is not a slapdash one.
Ken Wainstein: And to your point, there’s a lot of room for miscommunication and mistake in a FISA process. By contrast, if you’re getting a wiretap warrant in a criminal investigation, it’s pretty straightforward. It’s usually you’re an FBI agent, I’m a federal prosecutor. You come in and say, here’s the evidence I’ve got. I say, it sounds like that’s enough to get a warrant.
Ken Wainstein: Sounds like it would help our investigation get a warrant. Let’s put the package together and take it to the federal judge. The two of us marched down to the federal judge and sit down and show it to him or her and then hopefully get the order. That’s pretty straight forward. All happens within the confines of the city that we’re operating in.
Lisa Monaco: And ultimately though importantly, eventually that wiretap application, the evidence from it ends up where?
Ken Wainstein: Oh, if the case ends up in charges, then it ends up in court. And it ends up in the hands of the defendant, the person that gets charged, and then it’s all litigated and played out publicly before the judge, for the judge to assess whether everything was done right and that whether there really was probable cause for that wiretap order. In this situation, to your point in the FISA situation, it’s all done in secret and it’s not going to end up in charges. Typically it ends up typically in just a counterintelligence investigation, so it doesn’t see the light of day like a criminal wiretap order.
Lisa Monaco: And I think that’s an important point to underscore. You said a counterintelligence investigation, which is really what this was. This was a counterintelligence investigation into a potential Russian influence into the Trump campaign and included in that investigation was this FISA on Carter Page as a suspected agent of a foreign power. This was a counterintelligence investigation. Very different in purpose and scope and standards than a criminal investigation. The point of a counterintelligence investigation is to determine, do we have an agent of a foreign power who’s trying to collect secrets from us and influence us in our government? And if so, let’s gather information about it so we can learn how to protect ourselves better.
Lisa Monaco: The goal isn’t necessarily to put handcuffs on and bring people into court like in a mafia prosecution, so you’ve got different purposes and then different standards attached.
Ken Wainstein: Right, there are a number of different ways of dealing with a situation like that. Take this out of the Carter Page situation. Just think of any other spy on behalf of a foreign government. You wiretap the guy determined that he’s a spy working against you. One of the things that we might do is flip him back against his old government. So there’s no charge against him. Rather we go to him and say, we got the goods on you and here’s one of your choices. You can become a double agent. So that wiretap has been incredibly valuable. For purposes of us getting intelligence by making him into a double agent, is not a matter of creating evidence that’s going to be used in court to try-
Lisa Monaco: And ultimately tested in court?
Ken Wainstein: Yeah exactly.
Lisa Monaco: And so then you have this problem. You need to have a secret process so that you can conduct the surveillance of this suspected spy and maybe flip him back against his own government and you’re not going to have, ultimately it all get aired in a court and tested in a court. So you got to make sure you put in enough checks at the front end so you’re not surveilling somebody for whom there isn’t probable cause to believe in. And that was the sobering thing, that just last week the justice department became, it got revealed, I mean this happened back in December, but it only just became public in the last week that the justice department told the federal judge, the head of the FISA court that in fact was respected to have the renewals of this FISA. There was in fact insufficient evidence to support probable cause and that was the justice department themselves making that admission to the court.
Lisa Monaco: That was sobering to me to read that. On the one hand, as you and I both know the coin of the realm for prosecutors and lawyers in front of the FISA court is ultimate and complete candor, you have to basically show your case warts and all. So I wasn’t surprised that when they made this conclusion that there was insufficient evidence that they told the court, but to see that there ultimately was that insufficiency in such an important FISA, that was sober.
Ken Wainstein: And it’s prompted a response from the FISA court. They have demanded reforms and reports of reforms from the FBI and they’ve appointed one of our old friends, David Chris, to monitor that process and look, there might be other shoes to drop here. There’s some talk out there that maybe FISA needs to be reigned in. I know president Trump tweeted about maybe FISA going too far in the aftermath of this disclosure.
Lisa Monaco: And now there’s a number of reforms that have been put on the table. The current FBI director, Chris Ray has proposed a number of reforms. As you said, David Chris, who was our former colleague, he was the head of the national security division, our old job. He has told the FISA court thus far that the FBI reforms are necessary that have been laid out but not sufficient. I think the FBI reforms right now have been focusing on increasing the training and providing better guidance. David Chris went further. And it was pretty interesting to me to read what he has laid out there thus far, which is he said, we may be looking at a need for a cultural change and have we gotten too comfortable with this process as detailed and as cumbersome at times is as you rightly point out it is. Maybe it’s gotten too ingrained. So we’ve seen the slippage that has been identified in the IEG report and I think the open question is are there other shoes to drop as you set?
Lisa Monaco: Does this reveal that there might be more systemic concerns? Because at the end of the day, the biggest issue here as identified by the IGA report was the failure of information that would have tended to undermine a finding that Carter Page was an agent of Russia. The failure of that information to get to the attorneys at the national security division and ultimately to get to the court. So the other big thing to come out of this review thus far was a pretty stark statement from attorney general Barr.
Lisa Monaco: Even though I think he took issue with a number of the inspector General’s conclusions because we should point out the inspector general said even though he went into the very real and concerning deficiencies in the FISA process that went into getting to the Carter Page FISA’s we’ve talked about. He did say that the basis for opening the original investigation into the Trump campaign, he didn’t find any evidence of any political taint to that or political influence to that and that there was an authorized basis or a legitimate basis to open the investigation. Attorney general Barr differed with the inspector general on that. But the attorney general did make a statement coming out of this IGA review that I think you and I both agree with.
Barr: Well, we’re considering a number of additional things. Chris Ray and I have discussed a number of possibilities. One of the things that we have agreed on is that the opening of a counter-intelligence investigation of a presidential campaign would be something that the director of the FBI would have to sign off on and the attorney general would have to sign off on.
Ken Wainstein: The decision was made in the summer of 2016, to open a counterintelligence investigation into the campaign of a presidential candidate. And that is so fraught when you think about it. That means we’re opening investigation and then authorize the FBI to use investigative tools of variety of different types, including electronic surveillance, the FISA, against a campaign, somebody who’s running for president and this puts the FBI in the last position they want to be in. I.e in a position where they might have some influence one way or the other on American politics. That’s where you don’t want the FBI. The FBI has been there. It was a disaster. It led to the abuses we talked about that were disclosed in the early seventies. And it’s the place where the FBI can’t be and shouldn’t be, but unfortunately they’re the ones who run counter-intelligence specifications. And if one is predicated and one is needed, they’re the ones to run it. And I think-
Lisa Monaco: And they have to do their job.
Ken Wainstein: They’ve got to do their job. And you can’t say because this is so perilous, we’re not going to do it. And give people, sort of it’s open season for counter-intelligence threats, running through presidential campaigns. And keep in mind, everybody agrees that 2016 wasn’t the end of foreign political interference.
Lisa Monaco: Hardly.
Ken Wainstein: It’s just the beginning. We’re going to see it and it’s going to be redoubled by the Russians and by other copycats around the world. And 2020 is going to be full of it. So just [crosstalk 00:42:29]-
Lisa Monaco: Just go to our former boss, Bob Mueller. It’s happening as we speak. As he testify.
Ken Wainstein: So the FBI needs that ability and needs to undertake those investigations. But I do agree that it’s important to go back and look at the decision that was made in 2016 to do it because it’s a momentous decision, but also the process that led to that decision and look, DOJ over time has developed processes for decisions prosecuted and investigative decisions in sensitive areas.
Ken Wainstein: Whether it’s the special processes for looking into organizations that have first amendment implications, religious organizations and the like. Same thing here and so I agree with the attorney general Barr that we need to look at that. And one thing he’s floated is the idea that any decision like that needs to be signed off by the FBI director and the attorney general. And then that’ll probably then have other process beneath each of them that will make sure that all aspects of this decision have been vetted, very carefully vetted. Some have said, well, gee, that’s problematic because now you’re taking in the person of the attorney general, a political appointee, a member of the president’s cabinet, the sitting president’s cabinet, and having that person sign off on, or have decision making authority over whether the FBI should open a counterintelligence investigation into a political entity. And doesn’t that inject more politics into the decision making? That’s a legitimate concern.
Lisa Monaco: Remember, it’s the political appointees in the justice department who are ultimately accountable. They’re the ones who can get hauled up before Congress to justify a decision and that we need to make sure we hold them accountable for those decisions. But first you have to place those decisions with them. So I think on balance, I agree that having even a very sensitive decision like this, especially a sensitive decision like this have to go all the way up is an important thing along with having more guidance. So it’s been fun talking you about all these really challenging, depressing and never ending issues Ken.
Ken Wainstein: Yeah, I’m glad we solved our nation’s national security problems. There we go.
Lisa Monaco: We’ll see you next time.
Ken Wainstein: Right.
Preet Bharara: Lisa and Ken’s conversation continues for Cafe Insiders. To hear the bonus, become a member at cafe.com/insider. That’s cafe.com/insider. For those of you who have joined the insider community, thank you for supporting our work and a special thank you to Lisa and Ken. I’m looking forward to the next national security debrief.