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Law & the Courts

Responding to Charlie Savage on My Clinesmith Series

The logo of the U.S. Central Intelligence Agency in the lobby of the CIA headquarters in Langley, Virginia March 3, 2005. (Jason Reed/Reuters)

I often disagree with the trajectory the New York Times’s coverage, particularly since Donald Trump became president and the news pages became unabashedly partisan. Still, the Times has many excellent reporters, and, as I said in my book about Russiagate, Charlie Savage is prominent among them. If you follow national-security issues, especially regarding intelligence and surveillance, he is essential reading.

On Twitter, Mr. Savage has registered complaints about the three-part series I’ve done on former FBI lawyer Kevin Clinesmith’s guilty plea (Part 3, linking the first two installments, is on the homepage today). He makes a fair objection to an excess in my description of Carter Page’s relationship with the CIA. Yet, most of his squawking just minimizes the remorseless facts that Page had a working informant relationship with the agency, that this relationship overlapped with activity the FBI relied on in claiming that Page was a spy for Russia, and that the FBI both knew about the relationship and concealed it from the Foreign Intelligence Surveillance Court.

Savage maintains that I have grossly exaggerated Page’s informant status. Most of this is overwrought — and more than a little rich given the Times’ initial portrayal of Page as the plinth of Trump–Russia collusion, until the collapse of the Steele dossier had the paper moving on to George Papadopoulos and its rickety Collusion 2.0 theory, as if Page had never happened. But Savage is right about one aspect of my description of the CIA–Page relationship. It goes to my statement that the CIA “tasked” Page. Savage noticed something that I missed in the Justice Department IG’s report on FISA abuse. Had I noticed it, I would not have used the word, though it would not much have changed my description of the relationship. So he is quite right to call me on it.

In a section of Tuesday’s column (Part 2), I wrote (emphasis in original):

In connection with Clinesmith’s case, we’re talking about a digraph that the CIA uses in its intelligence reports. The digraph remains classified. We are not told what the two letters are in either the criminal information against Clinesmith or the DOJ inspector general’s FISA abuse report (where most of the Clinesmith story is related at pages 247–56, with the SSA referred to as “SSA 2”). We are informed only that the digraph denotes an American who has been approved by the CIA for “operational contact” with a foreign power. When you encounter “[digraph],” then, understand that it is a CIA term, defined as an American who is tasked by the CIA to have contact with certain foreigners and who wittingly reports the resulting intel back to the CIA.

To the contrary, Savage points to footnote 489 on page 358 of the IG report, in which the IG discusses the term “operational contact” more elaborately than was done in the sections of the report on which I had focused. It states (my italics):

[A]ccording to the [CIA], “operational contact,” as that term is used in the memorandum about Page [sent by the CIA to the FBI in August 2016], provides “Contact Approval,” which allows the agency to contact and discuss sensitive information with a U.S. Person and to collect information from that person via “passive debriefing,” or debriefing a person of information that is within the knowledge of an individual and has been acquired through the normal course of that individual’s activities. According to the U.S. government agency, a “Contact Approval” does not allow for operational use of a U.S. Person or tasking of that person.

I did not recall this footnote from prior perusals of the IG report. In writing the series on Clinesmith’s case, I relied on the criminal information filed against Clinesmith, as well as the IG report sections that provided narratives of Page’s interactions with the CIA and of Clinesmith’s activities in June 2017, during the run-up to the fourth Page FISA warrant application (mainly, pp. 157-58 and 247-56). Those materials do not provide all of the information that is in footnote 489, which is in a section that, by the IG’s description, deals with “the role of Christopher Steele’s election reporting” in the FISA applications.

That is no excuse, though. In the excerpted passage, I was describing the CIA’s definition of the “digraph,” and the way the IG rendered that definition, tasking is excluded. I regret using the word and will amend that sentence accordingly (and link this post to the correction).

That said, the rest of Savage’s critique in this regard is unpersuasive. He complains, for example, about my assertion that Page had been “approved by the CIA for ‘operational contact’ with a foreign power”; and, relatedly, that I called him a CIA “operative.” Those are accurate statements. The first was drawn directly from the Justice Department’s criminal information against Clinesmith (see p. 3, n.1: the digraph describes “a U.S. person who has been approved by the [CIA] for ‘operational contact’”). An “operative,” moreover, is a person whose activities further an agency’s operations. The fact that both the CIA and Page apparently agreed that Page was more a free actor than a directed actor does not mean he was not an operative.

Nor does the fact that, as a definitional matter, footnote 489 states that “operational contact” status does not contemplate “operational use” of the informant. As the IG described the CIA–Page relationship, which went on for years, Page was well aware that he was working for the CIA as an approved, witting information source. He understood what intel the CIA was interested in getting from him, both because they approved him as an “operational contact” only after interviewing him, and because he was “questioned” by the CIA “on an ongoing basis” while reporting information to them. Page’s arrangement was that he went about his normal business routine, he had contact with people he knew were of interest to the CIA, and then reported back. And the CIA assessed his credibility the way investigators do with people who are intentionally providing them with intelligence. Furthermore, in its own 2009 interview of Page, the FBI told Page that the bureau would not ask him about his dealings with the CIA (IG Report, pp. 157-58). There would have been no reason for such circumspection if Page was a completely passive source; the FBI understood that to ask him questions about his interactions with the CIA would have risked compromising the CIA’s intelligence-gathering efforts.

This is a great deal of explanation regarding a point of marginal significance (which, ironically, is the essence of Savage’s critique of my Clinesmith series). No matter how pointedly the CIA guided Page regarding what intelligence about Russians the agency hoped to get, the fact remains that Page, in a relationship mutually agreed to with the CIA, was wittingly acquiring information and reporting it back to them. As an institution, the FBI was aware of this as early as 2009, acknowledged it again in 2013, and its Crossfire Hurricane team was expressly informed about it in 2016 — quite apart from the bureau’s having every reason to know about it due to its own interactions with Page, and Page’s public pronouncements (which included an offer to meet with the FBI and discuss Steele dossier allegations which had become public). Yet the FBI concealed the CIA–Page relationship from the court. And when the FBI’s attention was drawn to this dereliction while it was preparing a fourth FISA warrant against Page, the FBI concealed it yet again — with Clinesmith falsifying a document that confirmed the relationship.

My biggest frustration with Charlie Savage, whom I hold in esteem, is I think this is outrageous conduct while he and the Times seem not to . . . though I can’t help thinking they would if the political context were different.

I don’t care about Savage’s complaints that my Clinesmith series is verbose. Savage would have a point if I had undertaken to write three long columns on the precise dynamics of Page’s informant work for the CIA (much of which remains classified). But that’s a small part of the story, and the important thing about it is that there was a witting informant relationship. That is because Clinesmith misrepresented it as an unwitting relationship. The series is about how what Clinesmith did fits into the greater pattern of Crossfire Hurricane deception, and why I believe his claims to have acted without an intention to deceive are untenable. Because the case is complicated, I endeavored to explain the framework in which Clinesmith operated, the underpinnings of his confusing “I lied but I didn’t intend to deceive anyone” defense, and why it doesn’t add up. Finally, from the standpoint of a former prosecutor, I tried to explain why the court’s acceptance of the plea is problematic, though probably legally sufficient; and why I think it was a mistake for the Justice Department to accept the plea deal in light of Clinesmith’s deficient (and I believe, dishonest) allocution.

Savage thinks I went on too long over something he sees as not worth the effort. Not everyone sees it that way though, and I’m content to let readers decide. It’s not like anyone’s holding a gun to their head (or even Charlie’s head!) to read it.

I am taken aback, though, by how forgiving Savage is of the government’s transgressions, citing, for example, the claim that the CIA blew Page off in 2013 (as if that could change the fact that there was a five-year relationship that the bureau concealed); and the findings of the Senate Intelligence Committee that counterintelligence concerns about Page were justified, which he sees as a showstopper because that committee is “GOP-controlled” (to my mind, as I’ve argued in the past, it is a useless committee whose ethically compromised chairman, Senator Richard Burr (R., N.C.) allowed it to be dominated by Democrats).

Would the Times view things the same way if the investigation had been launched by Donald Trump’s administration rather than on the theory that Donald Trump and his campaign were beholden to Russia? I don’t think so. And if the Times, consistent with its history, had decided government misconduct should be exposed instead of rationalized, no one would more effectively have exposed it than Charlie Savage.


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