Spygate and the NSA- Part 1: Adm. Mike Rogers Smells a Rat

(AP Photo/J. Scott Applewhite)

Admiral Mike Rogers is a highly decorated US Navy Admiral collecting 18 ribbons for his service.  During the 2003 invasion of Iraq, he joined the Joint Staff answering directly to the Pentagon’s Joint Chiefs of Staff and by 2009 became the chief intelligence officer for them.  He was later named commander of the US Fleet Cyber Command and commander of the Navy’s tenth fleet as well as head of the Navy’s cyberwarfare efforts.  In 2014, President Obama nominated him to become the head of the NSA which did not require Senate approval.  However, approval was required for his nomination as head of the US Cyber Command, and he was unanimously confirmed.  He then assumed leadership of the NSA.

Despite the accolades, ribbons, medals, and unanimous Senate confirmation, there were two people in the Obama administration who were not impressed- James Clapper, the DNI, and John Brennan, head of the CIA.  Upon the announcement that Obama was nominating Rogers to head the NSA, Brennan allegedly said, “It’s put up or shut up time.”  Settling into the job, Rogers apparently saw anomalies in database query requests at some point in 2015.  We do not know if he then requested the NSA Inspector General, George Ellard, to investigate, or if Ellard was doing this of his own accord.  

In early January 2016, Ellard presented his report to Rogers.  The report revealed that the NSA was not fully complying with federal law in queries of the NSA database of communications.  Of particular interest was Section 702 of the FISA law that permits the NSA to target the surveillance of foreign persons outside the United States for the purpose of gathering intelligence.  Instead of issuing individual court orders, section 702 requires the attorney general and the DNI to provide FISC with annual certifications that specify categories of foreign intelligence information allowed under Section 702.  The attorney general and DNI must certify that the intelligence community follows established minimization procedures that are approved by the FISC for the annual certification. 

Instead what the IG found and reported to Rogers was abnormalities in query searches.  The NSA had no mechanism to reliably identify queries.  The report stated:

We identified another [redacted] queries that were performed outside the targeting authorization periods in E.O. 12333 data, which is prohibited by the E.O. 12333 minimization procedures. We also identified queries performed using USP selectors in FAA §702 upstream data, which is prohibited by the FAA §702 minimization procedures.

Downstream collection of data involves the government acquiring information from companies providing service to a user.    However, some information collected by the NSA is done so through upstream methods like accessing high capacity fiber optic cables that carry Internet traffic.  The NSA is supposed to then filter out any “wholly domestic” communications that are between Americans on US soil.  Data collected “incidentally” on Americans is never destroyed, but it is required to be minimized.  Intelligence and law enforcement agencies can then search the collected data using “to,” “from,” and “about” queries on targets of Section 702. 

Rogers was doing his job after finding abnormalities in queries of the NSA database.  The IG report noted that most of the violations concerned “about” inquiries.  And although heavily redacted, the IG report showed that this was a serious problem.

Upon receipt of the report, Rogers instituted a series of reforms and a tightening of controls to come into compliance with the query problems.  What the report found was that in 2015-2016, the main perpetrators of violating the Section 702 protocols were outside agencies, mainly the DOJ’s national security division and the FBI’s counterintelligence department.  At the time, Bill Priestap headed the FBI’s counterintelligence department and John Carlin led the DOJ’s national security department.

A later review revealed that there was an unusual amount of query requests in the period from November 2015 to May 1, 2016.  That review determined that 85% of the queries did not comply with NSA guidelines.  The review also stated: “A non-compliance rate of 85% raises substantial questions about the propriety of using [Redacted] to query FISA data.”    The government cannot say how, when or where the non-compliant information was used since once in possession, the query could no longer be traced or tracked.  However, the original Ellard IG report informed Rogers that the bulk of the queries were made by an unnamed source largely staffed by “private contractors.”  Hence, private contractors of the FBI had access to the NSA data.

These revelations and further investigation led Rogers to conduct a more comprehensive review of procedures.  In the interim, he blocked access to the NSA database through query searches to outside contractors of any federal agency.  This occurred sometime in April 2016.  The names of the private contractors remains unknown to this day, but it is known that Fusion GPS was a contractor for the FBI.  In response to the actions of Rogers, the FBI stopped access to raw FISA data on April 18, 2016.  The FBI did not stop contractor access to raw NSA intelligence of their own volition; they were cut off by Mike Rogers.  The IG report also found that contractors of the FBI and DOJ conducted query searches long after a case had been settled.   

With a key tool to their efforts now thwarted, it becomes obvious why Brennan and Clapper opted for human intelligence of the Trump campaign sometime in April 2016 and why Misfud, Halper and a beautiful Russian student were brought into the saga- they needed intelligence on the Trump campaign.  The communications intelligence, largely conducted by third party private contractors, was cut off.   That was the whole purpose of Crossfire Hurricane- to develop a legally-sanctioned mode of intelligence gathering on Trump campaign officials.  In the interim, human intelligence in the forms of Misfud and Halper (and others) would have to fill the gap.

But, Clapper and Brennan were not through.  In November 2016, they, along with Defense Secretary Ashton Carter, approached President Obama and requested that Rogers be fired from his post.  They attacked his abilities, questioned his leadership of the NSA, and otherwise tainted his record.  A series of uncomplimentary articles about Rogers appeared in the Washington Post of alleged complaints about intelligence regarding ISIS which was growing into an embarrassing situation for the Obama administration at this point.  The complaints further blamed Rogers for the leaks regarding US cyber efforts and programs which is ridiculous since this occurred- the Snowden revelations- before Rogers was head of the NSA.

More realistically, two things changed in the interim.  One, Donald Trump had won the 2016 election.  Second, Rogers had testified to Rosemary Colyer of the FISA court that he found systemic, sustained, and illegal spying on Americans under Section 702 of the FISA law and he appeared to point the finger at Clapper and Brennan.  Once he discovered it, he put an end to it.  This information was relayed to Colyer four days after she issued a warrant on Trump campaign adviser Carter Page.

What probably most brought down the ire of Brennan and Clapper is that Rogers held a meeting with the President-elect Donald Trump in Trump Tower.  This was the source of Trump’s infamous, but poorly worded, “I’ve been wiretapped” declaration.  Rogers never informed Clapper, Brennan, or Obama that he was meeting with Trump.  The day after Rogers visited Trump in New York at the transition headquarters in Trump Tower, Trump moved his headquarters to his Bedminster, New Jersey golf resort.

Immediately, Ben Rhodes sprung into action leaking stories of the Rogers visit to Trump Tower.  He was portrayed in the press as a loose cannon, as someone who did not follow the chain of command, and as someone attempting to curry favor with Trump since Trump was considering him for the position of DNI to replace Clapper.  Ashton Carter was brought on board for the full court press against Rogers.  Regardless, given the pushback from the incoming President that the Obama administration spied on his campaign, Obama rightfully realized the bad optics canning Rogers would create and never fired him.  Rogers retired in 2018.

Next: Clues to the contractors