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This article first appeared on the Just Security site.

The news that Donald Trump asked the Director of National Intelligence, Daniel Coats, and the director of the National Security Agency, Adm. Michael Rogers, to publicly deny the existence of any evidence of collusion between the Russians and the Trump campaign to influence the presidential election may, or may not, contribute to the overall emerging picture of obstruction of justice by the president.

This revelation underscores several important points about the investigation.

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First, as is so often the case in criminal investigations, the devil is in the details. That is particularly true in this case, because the investigation will likely focus on Trumps intent, that is, whether he corruptly attempted to interfere with or impede the FBI investigation, meaning with an improper purpose.

Assessing intent requires a close examination of direct evidence (like Trumps own statements about his intent), and circumstantial evidence (including Trumps actions and words before, during and after the alleged acts of obstruction).

On the face of it, its not evident that Trumps request to Coats and Rogers to comment publicly on the state of the evidence amounts to obstruction. However, according to the Washington Post article , several officials interpreted Trumps request as an attempt to interfere with the investigation.

(That said, NBC News is reporting from a single source that a former official told NBC News that Coats and Rogers did not believe they were being asked to do something illegal. It was more of a public relations request.)

Determining what Trump intended will require establishing and closely analyzing what precisely he said, and the context of his words. Was he clumsily trying to get information out to the public, or was he trying to put pressure on the FBIs investigation?

Admiral Michael Rogers, commander of U.S. Cyber Command and Director of the National Security Agency, testifies during a House Armed Services Emerging Threats and Capabilities Subcommittee hearing on Capitol Hill in Washington, March 4, 2015. Drew Angerer/Getty

How others understood Trumps words at the time will often be powerful evidence of how they were intended, but not always determinative.

Second, despite the steady revelations over the last two weeks, there may not ultimately be a smoking gun, a single piece of evidence that definitively establishes Trumps intent.

It is more likely that his intent will be discerned from all the available evidence considered together, in this case Trumps alleged request of then-FBI Director James Comey to declare his loyalty, Trumps privately expressed hope to Comey that he find a way to let the Flynn investigation go, Trumps firing of Comey, the false narrative that Trump created about the firing, Trumps statements to the Russians about dismissing Comey and Trumps own public statements about what he did.

This new revelation about Trumps request to Coats and Rogers, once its details are filled in, will need to be assessed along with all these other pieces of evidence.

Perhaps more damning than the Coats and Rogers revelation, the Washington Post story also contained the following alarming disclosure:

In addition to the requests to Coats and Rogers, senior White House officials sounded out top intelligence officials about the possibility of intervening directly with Comey to encourage the FBI to drop its probe of Michael Flynn, Trumps former national security adviser, according to people familiar with the matter. The officials said the White House appeared uncertain about its power to influence the FBI.

Can we ask him to shut down the investigation? Are you able to assist in this matter? one official said of the line of questioning from the White House.

It is difficult to believe that the senior White House officials referenced here were not being encouraged or directed by Trump to find a way to shut down the FBIs investigation. What subordinates said at the time, how they behaved, and what instructions they received from above will also help establish whether Trump committed obstruction of justice.

Third, there will always be some explanation. Following the revelation that Trump told the Russians that Comey was a nut job and that firing him had relieved great pressure on the President, National Security Adviser H.R. McMaster and Secretary of State Rex Tillerson both labored to offer benign (though notably different) explanations for Trumps words.

It would not be the first time in this affair that administration officials have sought to spin (or lie about) the facts. Investigators, and the public, will need to assess these explanations, relying in part on their common sense, to decide whether they are plausible on their face and how they fit (or dont fit) with all the available evidence.

Finally, it is again worth remembering that the question of whether Trump committed obstruction of justice, to a criminal standard, is just one part of the larger inquiry. The question of criminality cannot be the beginning and end of the investigation.

Important also is to ask whether Trump or any administration officials acted unethically; in violation of rules, regulations, or policy; incompetently; or in a manner that could undermine U.S. security or interests.

The story about Trumps request to Coats and Rogers may contribute to the obstruction inquiry, but it raises many of these other questions as well. For example, the Post cites senior intelligence officials who saw the requests as a threat to the independence of U.S. spy agencies.

For this reason, it is essential that the congressional investigations continue to probe these larger questions and to assess whether personnel, policy, or legislative reforms are warranted.

Alex Whiting is a Professor of Practice at Harvard Law School. From 2010-13, he served as the Investigation Coordinator and the Prosecution Coordinator in the Office of the Prosecutor at the International Criminal Court.

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Why Did Trump Tell NSA Chiefs to Deny Russian Plot? - Newsweek

In a letter sent today to House lawmakers, major tech companies asked for reforms to a legal authority underpinning controversial National Security Agency programs.

Section 702 is set to expire at the end of the year

Section 702 of the FISA Amendments Act, which is set to expire at the end of this year, is the legal basis for NSA programs that broadly sweep up electronic communications. The programs are meant to target non-US citizens overseas, although critics have long charged that Americans are unnecessarily caught up in the net. Section 702 is used to authorize the controversial PRISM program, which the NSA uses to collect information from tech companies.

The letter, signed by companies including Amazon, Facebook, Google, Twitter, and Uber, requests that lawmakers consider changes before reauthorizing 702, such as increasing transparency and oversight, as well as narrowing the amount of information collected under such programs. The companies also asked for more leeway in disclosing national security demands.

Last month, the NSA said it would halt 702 collections that simply mention foreign intelligence targets, a process that has been the subject of major criticism. The letter also requests that those changes to the process be codified by law.

The companies write that the letter is meant to express our support for reforms to Section 702 that would maintain its utility to the U.S. intelligence community while increasing the programs privacy protections and transparency.

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Facebook, Google, and other tech companies ask lawmakers to ... - The Verge

Facebook, Google, Microsoft and a host of tech companies asked Congress on Friday to reform a government surveillance program that allows the National Security Agency to collect emails and other digital communications of foreigners outside the United States.

The requests came in the form of a letter to Republican Rep. Bob Goodlatte, a Virginia lawmaker whos overseeing the debate in the House of Representatives to reauthorize a program, known as Section 702, which will expire at the end of the year without action by Capitol Hill.

In their note, the tech companies asked lawmakers for a number of changes to the law particularly to ensure that Americans data isnt swept up in the fray. Meanwhile, they endorsed the need for new transparency measures, including the ability to share with their customers more information about the government surveillance requests they receive.

Signing the note are companies like Airbnb, Amazon, Cisco, Dropbox, Facebook, Google, LinkedIn, Lyft, Microsoft and Uber.

Absent, however, is Apple, which previously has joined with its tech counterparts in pushing for limits in government surveillance programs. A spokesman did not immediately respond to a request for comment Friday.

Section 702 is one of a number of U.S. surveillance authorities that had been the subject of great scrutiny and debate in the aftermath of Edward Snowdens surveillance leaks. The disclosures have also caused years of heartburn for Silicon Valley, which has faced an onslaught of criticism from international customers who feel the tech industry is too close to the U.S. government. Many top tech companies even banded together in a lobbying group that pushed for surveillance reforms in 2013.

As the fight over the NSAs powers returns to Congress, however, the Trump administration has urged lawmakers to keep Section 702 in its exact, current form.

Earlier this month, the NSA on its own terminated a piece of its program that essentially allowed the agency to collect Americans emails and texts if those communications contained key words related to foreigners that already are targeted for government surveillance.

To that end, the tech companies writing Congress today said Congress should formally outlaw that practice, known as about collection, as part of its new legislation, to ensure it cant come back.

Otherwise, the governments Section 702 program isnt supposed to target Americans. But their communications still are lapped up in the bunch, sometimes incidentally, including cases in which an American is communicating directly with a non-U.S. person who is the subject of NSA scrutiny. Despite calls from the likes of Sen. Ron Wyden, D-Ore., the agency has never disclosed the total number of Americans affected by such a program.

In response, the tech industry asked Congress to put in place judicial oversight for government queries for U.S. citizens data. And they asked House lawmakers to rethink other portions of the law to reduce the likelihood of collecting information about non-U.S. persons who are not suspected of wrongdoing.

Originally posted here:
The nation's top tech companies are asking Congress to reform a key NSA surveillance program - Recode

The secret court that oversees government snooping took the Obama administration to task late last year, suggesting it created "a very serious Fourth Amendment issue" by violating rules the government itself had implemented regarding the surveillance of Americans.

According to top-secret documentsmade public by the Foreign Intelligence Surveillance Court often referred to as the FISA court the government admitted that, just days before the 2016 election, NSA analysts were violating surveillance rules on a regular basis. This pattern of overreach, coupled with the timing of the governments disclosure, resulted in an unusually harsh rebuke of the administrations practices and principles.

A former CBS journalist suing the federal government for allegedly spying on her said the documents prove the illegal snooping was pervasive and widely abused.

POTENTIAL 'SMOKING GUN' SHOWING OBAMA ADMINISTRATION SPIED ON TRUMP TEAM, SOURCE SAYS

"Sources of mine have indicated that political players have increasingly devised premises to gather intel on political targets by wrapping them up in 'incidental' collection of foreigners, as if by accident," Sharyl Attkisson, who is pursuing a federal lawsuit the Department of Justice has tried to dismiss, told the Fox News Investigative Unit.

According to the FISA Court opinion, it was on September 26, 2016 that the government submitted an undisclosed number of "certifications" for the court to review. The review process was supposed to be completed within 30 days, or by October 26, 2016.

Just two days before that review was to be completed and less than two weeks before the 2016 election the government informed the court that NSA analysts had been violating rules, established in 2011, designed to protect the internet communications of Americans.

The NSA has suggested these were inadvertent compliance lapses, and points out that the agency "self-reported" these problems, meaning they were the ones to bring this issue to the attention of the court.

There was just one problem.

The violations that the government disclosed on October 24, 2016, were based on a report from the NSA's Inspector General that had been released 10 months earlier, in January 2016. This means that when the government submitted its certifications for review in September, they were likely aware of that IG report but failed to mention the malpractice going on at the NSA.

The Court at the time blamed an institutional lack of candor" for the government's failure to disclose that information weeks earlier, and gave the government until April 28, 2017, to come up with a solution. After failing to come to an agreement, the NSA announced that it was stopping the type of surveillance in question.

The so-called lapses among NSA staffers had to do with Section 702 of the Foreign Intelligence Surveillance Act, and the upstream surveillance of what the intelligence community refers to as about communications.

REPORT: OBAMA LIED AND OBAMA SPIED

According to the NSA, Section 702 "allows the intelligence community to conduct surveillance on only specific foreign targets located outside the United States to collect foreign intelligence, including intelligence needed in the fight against international terrorism and cyber threats."

Upstream surveillance, according to the ACLU, was first disclosed by NSA leaker Edward Snowden, and involves the NSAs bulk interception and searching of Americans international internet communications including emails, chats, and web-browsing traffic.

This Thursday, June 6, 2013, file photo, shows a sign outside the National Security Administration (NSA) campus in Fort Meade, Md. (AP Photo)

Until the NSA stopped it, the upstream snooping program notified them directly if someone inside the U.S. composed an email that contained the email address of a foreign intelligence agent who was being monitored. According to an NSA declaration reportedly made during the Bush administration, these communications did not have to be to or from the foreign agent, they simply had to mention the email address.

According to the FISA Court documents just made public, the notifications sent to the NSA often led to the unmasking of American citizens caught up in monitoring. And as the court pointed out, many of the requests being made to unmask the Americans taking part in these communications were in direct violation of safeguards established by the Obama administration.

According to the FISA Court documents, so-called minimization procedures adopted in 2011 to curb unlawful surveillance have prohibited use of U.S.-person identifiers to query the results of upstream Internet collections under Section 702.

And, according to the governments October 26, 2016 admission, NSA analysts had been conducting such queries in violation of that prohibition, with much greater frequency than had been previously disclosed.

The suspended surveillance program has been a target of fierce criticism from Republican and Democratic lawmakers, as well as journalists and even Snowden.

Sen. Rand Paul, R-Kentucky, told Fox & Friends on Wednesday that the terrible program was basically a back doorway to sort of get at Americans' privacy without using a warrant.

When the NSA announced it was stopping certain Section 702 activities, Senate Intelligence Committee member Ron Wyden, D-Oregon, said he had raised concerns for years that this amounted to an end run around the Fourth Amendment.

Snowden tweeted that the NSAs actions represented the most substantive of the post-2013 NSA reforms, if the principle is applied to all other programs.

Attkisson, who sued to determine who had access to a government IP address that she says was discovered on her CBS work computer during a forensics exam, said shes concerned the truth will never come out.

"I'm told by sources that it should only take a day or a week, at most, for the intel community to provide [lawmakers with] the details of which Americans, journalists and public officials were 'incidentally' surveilled, which ones were unmasked, who requested the unmaskings, when, and for what supposed purpose," Attkisson said. "Yet months have gone by. Im afraid that as time passes, any evidence becomes less likely to persist."

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Obama's NSA rebuked for snooping on Americans; journo says it proves wide pattern - Fox News

President Donald Trumps firing of FBI director James Comey continues to reverberate in the KremlinGate scandal, which threatens to consume the Trump administration. By abruptly removing Comey, then mangling his excuses for why he did so, Trump created a needless crisis for the White House which shows no signs of abating.

The impartial observer might think that Trump fired Comey because he feared what the FBIs counterintelligence investigation of the presidents contacts with Russia might revealas the commander in chief has essentially admitted. Moreover, Trumps inappropriate efforts to secure Comeys personal loyalty had fallen flatthe FBI director rightly assured the president of his honesty but abjured any fealty to Trump personallyafter which the president is reported to have developed a palpable fear of the incorruptible Bureau boss. To protect Team Trump, Comey had to go.

But cashiering Comey was insufficient. True to form, Trump seemingly tookthe offensive against the FBI. According to multiple reports, the president approached top intelligence bosses to coax them into joining Trumps personal war with Comey. In particular, Trump is reported to have asked Dan Coats, the director of national intelligence (DNI), and Admiral Mike Rogers, director of the National Security Agency, to go public in denying that Team Trump had any ties to Russia during the 2016 election campaign.

The presidents take on the FBI investigation is well known, thanks to his frequent tweets castigating it as fake news, a hoax and even a witch hunt. However, asking top intelligence officials to publicly attack the FBI and its director isnt just unusualits unprecedented. Even President Nixon, in the depths of the Watergate scandal, which ultimately unraveled his administration, never went quite so far as to drag NSA into his public mess.

Admiral Rogers anecdotally flatlydenied Trumps request, whichif truewas inappropriate, unethical and dubiously legal, while Coats, a Trump appointee whos only been in the DNI job since mid-March, likewise refused to back the president against the FBI. This was a stunning setback for Trump, who seems to view our nations top security officials as his personal employees who ought to follow his presidential whim rather than the law and the Constitution, which all of them take an oath to defend.

Last week, when he appeared before the Senate Armed Services Committee, Coats declined to answer questions about the White Houses effort to undermine the FBI investigation of Team Trump, stating, I dont feel its appropriate to characterize discussions and conversations with the president in open session. Presumably DNI Coats would be more forthcoming in a closed Congressional session, where classified information can be revealed.

Director Rogers, in contrast, has made no public statements about the presidents effort to enlist him in his anti-Comey campaign. This is typical of his famously tight-lipped agencyfor decades, NSA was humorously said to stand for Never Say Anythingand why Trump approached Rogers is no mystery. As the nations signals intelligence force, NSA isnt just the biggest source of intelligence on earthits also the agency possessing the bulk ofthe classified information which establishes collusion between Trump and the Russians. Although whispers of such SIGINT have reached the media, the lions share remains hidden from public view, though its all known to the FBI.

If Trump could co-opt NSA in his fight with the Bureau, that would be a big win, protecting the White House from dangerous information, so its safe to assume that Rogers refusal burned Trump personally. Perhaps thats why, early this week, Admiral Rogers took the unusual step of addressing the entire NSA workforce to tell them what transpired with the president.

This is not Rogers style. Indeed, his tenure as NSAs director (called DIRNSA by insiders) has been characterized by distance from his employees, which has made things rockier than necessary. To be fair to Rogersa career intelligence officer well equipped for his current positionwhen he became DIRNSA in the spring of 2014, he inherited an agency in crisis.NSA was still reeling from the disastrous Ed Snowden affair, the biggest theft of classified information in espionage history.

While Snowden has taunted NSA with tweets sent from his Russian hideaway, more security disasters have followed. The strange case of Harold Martin, yet another rogue defense contractor who stole gigantic amounts of classified information from the agency, constituted another Snowdenesque embarrassment, even though theres no evidence that Martin was engaged in espionage.

Worse for Rogers was the theft of highly classified hacking tools from NSA by the so-called Shadow Brokers, which is widely believed to be a front for Russian intelligence. The dumping of those top-secret exploits online, after modification by rogue hackers, has resulted in worldwide cyberattacks impacting millionsyet another black mark on Rogers tenure as DIRNSA. In response to these very public setbacks, Rogers has seldom addressed the NSA workforce about them or much else.

This weeks town hall event, which was broadcast to agency facilities worldwide, was therefore met with surprise and anticipation by the NSA workforce, and Rogers did not disappoint. I have spoken with several NSA officials who witnessed the directors talk and Im reporting their firsthand accounts, which corroborate each other, on condition of anonymity.

In his town hall talk, Rogers reportedly admitted that President Trump asked him to discredit the FBI and James Comey, which the admiral flatly refused to do. As Rogers explained, he informed the commander in chief, I know you wont like it, but I have to tell what I have seena probable reference to specific intelligence establishing collusion between the Kremlin and Team Trump.

Rogers then added that such SIGINT exists, and it is damning. He stated, There is no question that we [meaning NSA] have evidence of election involvement and questionable contacts with the Russians. Although Rogers did not cite the specific intelligence he was referring to, agency officials with direct knowledge have informed me that DIRNSA was obviously referring to a series of SIGINT reports from 2016 based on intercepts of communications between known Russian intelligence officials and key members of Trumps campaign, in which they discussed methods of damaging Hillary Clinton.

NSA employees walked out of the town hall impressed by the directors forthright discussion of his interactions with the Trump administration, particularly with how Rogers insisted that he had no desire to politicize the situation beyond what the president has already done. Americas spies are unaccustomed to playing partisan politics as Trump has apparentlyasked them to do, and it appears that the White Houses ham-fistedeffort to get NSA to attack the FBI and its credibility was a serious mistake.

Its therefore high time for the House and Senate intelligence committees to invite Admiral Rogers to talk to them about what transpired with the White House. Its evident that DIRNSA has something important to say. Since Mike Rogers is said to have kept notes of the presidents effort to enlist him in Trumps personal war with the FBI, as any seasoned Beltway bureaucrat would do, his account ought to be impressively detailed.

John Schindler is a security expert and former National Security Agency analyst and counterintelligence officer. A specialist in espionage and terrorism, hes also been a Navy officer and a War College professor. Hes published four books and is on Twitter at @20committee.

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Exclusive: NSA Chief Admits Donald Trump Colluded With Russia - Observer