When Doug Wilson and I set out to write the first edition of “National Security Investigations and Prosecutions” (NSIP), the attacks of Sept. 11, 2001, were still recent, George W. Bush was in his first term as president of the United States, Vladimir Putin was in his first term as the leader of Russia, Robert Mueller was director of the FBI and Lawfare was not even a gleam in its founders’ eyes.
David Kris is a founder of Culper Partners LLC. He previously served as assistant attorney general for national security, associate deputy attorney general, trial attorney at the Department of Justice, general counsel at Intellectual Ventures, and deputy general counsel and chief ethics and compliance officer at Time Warner. He is the author or co-author of several works on national security, including the treatise National Security Investigations and Prosecutions, and has taught at Georgetown University and the University of Washington. Randomly, but increasingly, when he submits material for prepublication review by the government, Mr. Kris has been directed to add the following disclaimer or its equivalent, which should be understood to apply to all of his published work unless otherwise indicated: “All statements of fact, opinion, or analysis expressed are those of the author and do not reflect the official positions or views of the U.S. Government. Nothing in the contents should be construed as asserting or implying U.S. Government authentication of information or endorsement of the author’s views.”
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The news is moving quickly on events surrounding President Trump’s ill-fated phone call with Ukrainian President Volodymyr Zelensky and the whistleblower complaint about the call that precipitated this latest crisis. But the complaint itself, released on Sept. 26, is a complicated document. It may be more easily understood with the benefit of three additional explanations, which I attempt to provide below.
In the wake of Watergate, a remarkable series of legislative and administrative reforms sought to prevent future abuses by making the attorney general responsible for keeping intelligence agencies within the law.
Times have changed.
After years of focusing on counterterrorism, a mainly kinetic threat, the U.S. intelligence community must now adapt to a long-term cyber struggle with nation-state adversaries. This struggle includes election interference and other socio-political disruption, cyber sabotage, theft of secrets, and competition in emerging technologies such as quantum computing and 5G wireless communications. To succeed against these threats, the intelligence community must shift its approach in two related ways.
The New York Times has reported that, in the wake of President Trump’s firing of FBI Director James Comey, the bureau opened a counterintelligence investigation into the president. At one level, of course, this is not surprising—John Bellinger identified Donald Trump as a potential danger to U.S.
Largely irrelevant to President Trump were the potentially vast problems Whitaker’s appointment poses to the Justice Department’s regular law enforcement and national security activities.
The president and his allies have a new line of attack against the Carter Page FISA application: the FISA Court did not hold a hearing to adjudicate the merits of the application. As one of the early peddlers of this line of argument put it on Twitter: