“I think it was disgraceful that the intelligence agencies allowed any information that turned out to be so false and fake out. I think it’s a disgrace.”
US President-Elect Donald Trump
“Let me tell you, you take on the intelligence community, they have six ways from Sunday at getting back at you. So even for a practical, supposedly hard-nosed businessman, Trump is being really dumb to do this.”
Senate Minority Leader Charles Schumer (D-N.Y.)
Can Intelligence officials ‘legally’ disclose classified information to members of the press? Form a legal point of view, the answer is a bit tricky, but the office of the DNI believes that it is legal in some circumstances. What is certain is that they are doing it. Follow us on Twitter: @Intel_Today
UPDATE (January 15 2018) — On this day, one year ago, I wrote that:
“The ‘Trump Report’ is mostly unverifiable but not entirely as the memos claim to reveal two high-level crimes. These two pieces of information are verifiable. They can be proven or disproven. The first one involves Trump’s lawyer Michael Cohen. The second involves a Russian businessman names Aleksej Gubarev.”
One year later, both Michael Cohen and Aleksej Gubarev are suing BuzzFeed.
On February 3 2017, Aleksej Gubarev — the CEO of XBT Holding, a Luxembourg-based web hosting company — sued BuzzFeed and Ben Smith, its editor in chief.
BuzzFeed has apologized to a Russian tech executive whose name appeared near the end of the document, which claims that he was “recruited under duress” to help Russian intelligence services and became a “significant player” in Russian hacking operations.
Gubarev’s company are suing BuzzFeed and Smith in Florida, where XBT’s Webzilla subsidiary is based.
Gubarev’s company also filed a suit in London against former British spy Christopher Steele, who created the dossier.
On January 9 2018, Michael Cohen — Donald Trump’s personal attorney — sued Buzzfeed for defamation over allegations about him in the dossier, which Buzzfeed had published.
END of UPDATE
RELATED POST: The ‘Trump Dossier’: A Clever Fabrication?
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RELATED POST: Intel Report Suspiciously Anachronistic
According to a National Security Agency report to Congress that was released recently under the Freedom of Information Act, US Intelligence officials have ‘educated’ members of the press on at least three occasions in 2013.
Executive Order 13526
Executive Order 13526 , section 4.2(b), states that:
“In an emergency, when necessary to respond to an imminent threat to life or in defense of the homeland, the agency head or any designee may authorize the disclosure of classified information […] to an individual or individuals who are otherwise not eligible for access. (…) For purposes of this section, the Director of National Intelligence may issue an implementing directive governing the emergency disclosure of classified intelligence information.”
Past cases (2013)
In one case, classified information was disclosed:
“in order to correct inaccurate understandings held by the reporter…”
In a different case, classified information was disclosed:
“in an effort to limit or avoid reporting that could lead to the loss of the capability …”
Notice that ‘Executive Order 13526’ does not mention the press at all. But obviously the US IC considers that, in some cases, there is an emergency “to correct inaccurate understandings held by a reporter.”
A – Mostly – Unverifiable Report
As Professor Paul Gregory wrote, the ‘Trump Report’ is mostly unverifiable. It is NOT an Intelligence Report. It is no more – at best – than RUMINT [Rumour Intelligence], GOSINT [Gossip Intelligence], and, as we shall see, FAKINT [Fake Intelligence].
“There are two possible explanations for the fly-on-the-wall claims of the Orbis report: Either its author (who is not Mr. Steele) decided to write fiction, or collected enough gossip to fill a 30-page report, or a combination of the two. The author of the Orbis report has one more advantage: He knew that what he was writing was unverifiable. He advertises himself as the only Kremlin outsider with enough “reliable” contacts to explain what is really going within Putin’s office.” [Pr. Paul Gregory]
The ‘Trump Report’ is mostly unverifiable but not entirely as the memos claim to reveal two high-level crimes. These two pieces of information are verifiable. They can be proven or disproven. The first one involves Trump’s lawyer Michael Cohen. The second involves a Russian businessman names Aleksej Gubarev.
One of the few verifiable facts in the Orbis report is the key role played by Trump’s “personal lawyer” Michael Cohen. Cohen purportedly took over the negotiation of the Sechin deal, and, when the Kremlin got cold feet over its hacking campaign, it turned to Cohen to cover up the operation, meet with the Kremlin’s Presidential Administration, and make illicit payments to shut up and move the hackers to Bulgaria. A key meeting was held in Prague in August of 2016 with Cohen accompanied by three colleagues. The meetings took place in the offices of a Russian quasi-state organization, Rossotrudnichestvo.
Cohen has denied any such meetings with the Kremlin Presidential administration and claims never to have visited Prague. According to the Orbis report, Cohen engaged in potential criminal activities, such as illicit payoffs to hackers and the buying of their silence. I doubt that he will let such accusations pass. [Pr. Paul Gregory]
The accusation is very serious, but totally unfounded. Trump’s press secretary Sean Spicer has already addressed the issue:
“Michael Cohen, who was said to have visited Prague in August and September, did not leave or enter the United States during this time.
We asked him to produce his passport to confirm his whereabouts on the dates in question and there is no doubt that he was not in Prague. In fact, Mr Cohen has never been in Prague.”
The ‘Trump Dossier’ claims that global tech firm XBT Holding, with operations in Dallas, was instrumental in the hack of leaked Democratic Party emails. XBT is run by a successful Russian tech startup expert, Aleksej Gubarev.
The report states that:
“XBT and affiliates had been using botnets and porn traffic to transmit viruses, plant bugs, steal data and conduct ‘altering operations’ against the Democratic Party leadership.”
“The report alleges that Gubarev and another hacking expert were recruited under duress by the FSB.”
Gubarev was surprised to see his name in the report.
“I don’t know why I am in this report. Perhaps a competitor sought to discredit me. I still don’t understand the true reason for this report.”
“Neither I or members of my family have been threatened or blackmailed.”
“I’m ready for any investigation. I’m ready to cooperate with everybody.”
What does the FBI know? And when did they learn it?
The FBI found no evidence that Michael Cohen visited Prague in August or September 2016.
It should have taken very little time for the Bureau to disprove the story of Alexsej Gubarev and realize that the source and author of the ‘Trump Memos’ is a con artist who picked up some information about Gubarev in a Bloomberg Russia publication.
FBI agents were in contact with Christopher Steele since – at least – August 2016 and the ‘Trump Memos’ were forwarded to the Bureau in real time.
So far, neither the Bureau nor anyone else has asked any questions to Aleksej Gubarev.
What does DNI James Clapper say?
Director of National Intelligence James R. Clapper Jr. said in a statement issued late Wednesday that he told Trump that:
The allegations had come from a “private security company,” that U.S. spy agencies had “not made any judgment that the information in this document is reliable.”
“However, part of our obligation is to ensure that policymakers are provided with the fullest possible picture of any matters that might affect national security.”
The way the ‘Trump Dossier’ was handled by the US Intel Agencies raises three distinct questions.
Should such a private unverified report have been brought to the attention of the US President and President-elect?
To be fair, one can perhaps argue this issue either way. However, a consequence of these briefings is that the ‘world’ is now taking this ‘Intel Report’ seriously because obviously the US Intel Agencies do take it seriously and regard its author as a credible person.
Who leaked these briefings to CNN and possibly other Medias?
Mr Trump is clearly convinced that US Intel Agencies are out to get him, and he may be right. But there is no proof that this leak comes from the US IC. Clearly, the person who leaked that information has caused great damages to the US, and possibly to the future of US-Russia diplomacy.
Why was nothing done by the US Intel Agencies to prevent the release of this ‘Dossier’ which has already caused great damages to the US regardless of the questionable veracity of its content?
James Clapper believes that classified information should be disclosed “in order to correct inaccurate understandings held by the reporter…” or “in an effort to limit or avoid reporting that could lead to the loss of the capability …”
The IC knew that the ‘Trump Dossier’ was erroneous on easily verifiable issues (Cohen, Gubarev) and they knew that Christopher Steele was in contact with some media. Why was no attempt made to talk to the journalists while pursuing quietly a serious investigation of the various allegations?
If the report is a fraud, as I believe, what a mess could have been avoided. If the allegations are true, extraordinary sources with access to Putin’s inner circle have been lost forever. And this would surely amount to a serious “loss of the capability” for the US Intelligence Community.
How Credible is the Report? — PBS NewsHour
Judy Woodruff speaks with former NSA lawyer Susan Hennessey and former CIA officer John Sipher for analysis.
Executive Order 13526 of December 29, 2009
One Year Ago — “Trump Dossier”: Can Intelligence officials ‘legally’ disclose classified information to members of the press?