The court must approve the certifications annually. Let’s pause momentarily over that word, certifications. Remember, Section 702 surveillance is not like court-authorized, probable cause-based monitoring of foreign agents operating inside the United States—the original purpose of FISA. Under Section 702, there is not even a requirement of individualized suspicion of a target, much less probable cause. Instead, 702 deals with foreigners outside the United States, the kind of spying American military forces and intelligence operatives have done without court participation since the Revolutionary War. When the Justice Department submits Section 702 certifications, the FISC is not asked to conclude that the contemplated surveillance is justified by evidence of potential harm to our country. The FISC is merely asked to put its imprimatur on spying that top executive national security officials represent they have some valid foreign intelligence reason for doing.
To be clear, I have no problem with such spying. It is essential for our security. My complaint involves the implication, created by a court process, that the foreign targets have cognizable privacy rights under American law. For the most part, the Section 702 process (as opposed to FISA’s original individualized warrant process) does indeed resemble a rubber stamp: showy judicial bunting on traditional foreign intelligence tactics. That is not to say the FISC does not work hard in scrutinizing these certifications; it does. The point is that it is not functioning as a court in signing off on these massive surveillance initiatives; it is not making evidence-based rulings, as judges do when presented with traditional search warrants.23 Rather, to please transnational-progressives who imagine our dangerous world has been tamed by legal processes—as opposed to acknowledging that whatever stability we have owes to scary armed forces and icky intelligence operations (“spying” is such a harsh word!)—Section 702 shrouds the executive’s sweeping covert interception of millions of potentially useful communications with the cover of judicial prestige. I don’t think this is good for the spy agencies, because security against evil actors sometimes calls for national defense measures of questionable legality that courts will be hesitant to endorse. Nor is it good for the courts, because their gravitas as an independent arbiter is eroded by collaboration with the executive in surveillance operations—activities that press the limits of American law and often violate the laws of the countries on whose agents we spy. One can simultaneously endorse these operations yet prefer that courts, our rule-of-law bulwark, not be involved in them.
In any event, while there are a number of certifications, the lack of need to make any evidentiary showing means all or most of them can be wrapped into a single presentation seeking FISC’s Section 702 endorsement. The Justice Department, the intelligence agencies, and the FISC obviously prefer doing things this way because the certifications, which require extensive preparation and paperwork, are valid for a year; the process allows them to be reauthorized at the same time annually.
Section 702 surveillance is carried out, in the main, by what is commonly known as the National Security Agency. A hybrid, top-secret enterprise, the NSA is a Beltway alphabet soup. Part of the Defense Department but under the authority of the Director of National Intelligence, it is a civilian cryptologic bureau in a somewhat uneasy marriage with the armed forces’ Cyber Command, a partnership facilitated by the Central Security Service (which is why the NSA is more formally known as “NSA/CSS”).24
Because it is inevitable that American communications will be vacuumed up in Section 702 surveillance, Congress requires the FISC to condition surveillance on compliance by the NSA and other government agencies with “minimization” procedures.25 These include time limits on how long information is kept in the Section 702 database, strict limits on the authority of intelligence officials to search this database for information about Americans, and rigorous recordkeeping requirements. The procedures also call for “masking” the identities of Americans who are incidentally intercepted: Before the NSA refines the raw data it collects into the reports and transcripts that are disseminated to intelligence agencies and White House security officials (e.g., the FBI, the CIA, and the National Security Council), it must redact information identifying U.S. persons—e.g., replacing the individual’s name with a designation such as “U.S. Person #1.”
It bears repeating: this is intelligence, so it is secret. Therefore—even if there is oversight by Congress and the FISC—we are to some degree at the mercy of intelligence officials. Gaping loopholes permit the unmasking of American identities if, for example, the CIA director, the FBI’s counterintelligence agents, the White House national security advisor, or some other top intelligence official decides the unmasking is necessary “in order to understand the intelligence value” of the communication.26
The government’s Section 702 surveillance program captures more than 250 million internet communications each year.27 There are two sources. The first is “upstream” collection. This refers to the so-called “backbone” of the internet: the data routes between computer networks that make global communications possible. These routes are hosted by government, academic, commercial, and similar high-capacity network centers. They facilitate the global exchange of Internet traffic. “Upstream” is distinguished from a second kind of collection, code-named “PRISM.” This is the downstream gathering of information from Internet service providers, such as Google, Facebook, Apple, and other firms that deal with telecom, email, texts, browsing histories, and the like.28
A decided minority of the total Section 702 intelligence haul is from upstream. How much of a minority is hard to say. In absolute terms, though, the overall number of communications is vast—easily in the tens of millions of communications per year.29 Upstream collection is technologically complex. It is not possible to capture a single email related to a single target as it transits the backbone routes (or “switches”) that connect networks. The NSA must instead capture packets of email data—which include lots of emails beside the targeted one. The agency sifts through these packets, finds and assembles the components of the email it is looking for, and then eventually discards the rest.30
Then there is the way the NSA targets. The upstream communications it collects end up in databases. When the NSA has a target about whom it seeks intelligence, it runs a search, called a “query,” through the databases, using what is variously called an “identifier,” a “selection term,” or a “selector”—e.g., an email address, phone number, or other identifying information related to the target. Intelligence agencies may seek not only communications to or from this target; they may also seek communications about this target—e.g., when the target is not a participant but is merely referred to in a communication.
“About” queries create a heightened risk of accessing communications that may involve non-targeted Americans and have nothing to do with foreign intelligence. For example, there could be an email train involving multiple communications and participants (called a multiple communication transaction, or MCT), with no participation by the target but some fleeting allusion to the target. An “about” query to upstream data will yield the entire MCT—even though the active users may be Americans in the United States whose contacts have been seized without a warrant and have no foreign intelligence value. “About” queries were of sufficient concern to Congress that a subsection of FISA specially addresses them and requires noncompliance incidents—material breaches of the FISC’s minimization instructions—to be reported “fully and currently” to the Judiciary Committees of the House and Senate.31
Obviously, a huge question is: Under what circumstances should investigators be permitted to search the Section 702 database for Americans’ information? The law permits not only searches by intelligence agents for national security purposes; FBI agents working on criminal cases also have access. In marked contrast to the Section 702 database, information about Americans collected under EO 12333 may be accessed only for foreign intelligence purposes, not criminal investigations.32
With that as b
ackground, we come to the Obama administration’s flouting of FISA court minimization procedures.
Spying on Americans and Misleading the Court
In 2011, whether because minimization procedures were being transgressed or because the NSA could not technically implement them, it became clear that intelligence agents were violating both FISA and the Fourth Amendment and that they were concealing the breadth of the violations from the FISC. In a scathing opinion, Judge John D. Bates, then chief of the FISC, rebuked the government’s pattern of deceiving the tribunal about “wholly domestic” communications the NSA was intercepting each year—noting that the most recent confession, involving tens of thousands of such communications, “mark[ed] the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program.”33
Of special concern was the use of email addresses and phone numbers of American citizens as selectors for database searches. Thus, the minimization procedures were ratcheted up. The most significant change was that the revised procedures categorically prohibited NSA analysts from using U.S.-person identifiers to query the results of upstream Internet collection. This meant the NSA was not supposed to use an American’s phone number, email address, or other “identifier” in running searches through its upstream database. The FISC also declined to authorize the acquisition of MCTs unless the foreign target was an active participant.34
In 2014, with the NSA reeling from the Snowden debacle, President Obama appointed a longtime military intelligence pro, Admiral Michael Rogers, to take over the agency in addition to commanding U.S. cyber operations (Cyber Command) at the Defense Department.35 In the meantime, the acquisition and screening of upstream collection continued to be a perplexing challenge. For that and other reasons, including the government’s poor track record of compliance and trustworthiness in dealing with the court, inspectors general of the relevant agencies began assessing the situation.
In 2012, for example, Justice Department Inspector General Michael Horowitz conducted a comprehensive study of the FBI’s Section 702 procedures, issuing a lengthy report.36 IG Horowitz found it frustrating to investigate foreign counterintelligence-related activities carried out by the FBI and the Obama Justice Department’s National Security Division (which handles FISA and other counterintelligence matters). They stonewalled routinely, delaying production or simply refusing to give the IG’s office relevant records.37 Sally Yates, Obama’s Deputy Attorney General who would later play a key role in the Trump–Russia investigation, had the Justice Department’s Office of Legal Counsel issue a 2015 memorandum, substantially rebuffing the IG’s request for access to various categories of information, including some intelligence obtained in counterintelligence investigations.38
At roughly the same time, the NSA’s Inspector General, Dr. George Ellard, undertook a “special study” of the agency’s internal controls for compliance with Section 702 targeting and minimization procedures. The snapshot on which the NSA-IG focused was the first quarter of 2015, analyzing all records of queries of the relevant database. On January 7, 2016, the NSA-IG issued its then-top secret report. The result was eye-popping. Nearly eight years after enactment of Section 702, the NSA had not yet “completely developed” internal “controls for monitoring query compliance.”
The bottom line, the IG found, was that the NSA had “no process to reliably identify queries performed using selectors associated with” Americans outside the United States. While other types of violations were found, most prominent was that the NSA was still using U.S. person selectors to query upstream data, which, as we’ve seen, was strictly prohibited under the Section 702 minimization procedures. The NSA-IG concluded that 5.2 percent of the queries were noncompliant—which translates into a significant number of American communications.39
But that’s just for starters. While the NSA was engaged in violative investigations of Americans, the FBI was giving raw FISA information, including intelligence acquired under Section 702, to private contractors. These contractors have not been publicly identified. They were not authorized to have access to the FISA information—which was even more sensitive than the materials the Justice Department and FBI were refusing to share with the DOJ-IG. Moreover, as the FISC later recounted, the contractors’ access “went well beyond what was necessary to respond to the FBI’s requests.” The FBI and the Justice Department had no control over what the contractors did with the information. The National Security Division also did not know “whether there have been similar cases in which the FBI improperly afforded non-FBI personnel access to raw FISA-acquired information on FBI systems.”40
On April 18, 2016, NSA director Rogers cut off all private contractor access to raw FISA intercepts. That month, he also directed that the NSA’s compliance office conduct a “fundamental baseline review of compliance associated with 702.” The Epoch Times’s Jeff Carlson reasonably surmises that it was the NSA-IG report and the discovery of the FBI’s misconduct that triggered these directives.41
By mid-April 2016, then, the Justice Department and its National Security Division were well aware of the NSA-IG report and the serious Section 702 noncompliance issues involving the surveillance of Americans and abusive dissemination of highly classified FISA information outside the government. Moreover, as it continued its internal investigation, NSA found that in one subset of searches, use of one of its common “tools” was leading to improper queries involving U.S. persons 85 percent of the time. In May and June 2016, NSA reported these findings to the Justice Department’s National Security Division and to the office of National Intelligence Director Clapper.42 Yet, three months later, when the Justice Department submitted its Rule 702 certifications to the FISC so that its programs could be authorized for the next year, the National Security Division (NSD)—the Justice Department component that deals with the FISC—did not disclose these derelictions.
Of course, it was in the second half of 2016 that the Trump–Russia investigation was going full throttle, with John Brennan’s CIA funneling information from foreign intelligence services to the FBI, informants being tasked with approaching Trump campaign figures, the Bureau opening its “Crossfire Hurricane” counterintelligence probe, the unmasking of Trump associates in intelligence reporting underway, and the FBI and Justice Department peddling the Steele dossier to the FISC. Was FISA information about Americans that had been improperly collected and accessed exploited in Russia-gate? Who were the unidentified “private contractors” to whom the FBI lawlessly provided FISA information, and were they somehow relevant to the Russia probe?43 Did the Trump–Russia investigation factor into the Justice Department’s withholding of violation information from the FISC? Was there worry, for example, that disclosure of the malfeasance might induce the court to deny a FISA warrant to monitor Carter Page? At the moment, we don’t know the answers.
Here is what we do know.
In September 2016, the FBI and Justice’s National Security Division were compiling the FISA warrant application for former Trump campaign adviser Carter Page.
On September 26, 2016, the Justice Department’s NSD submitted to the FISC its Section 702 certifications for the following year, consistent with the requirement that they be filed a month before the deadline, October 26. The application contained supporting affidavits from the heads of the relevant intelligence agencies, including NSA Director Rogers. The government’s submission withheld from the FISC anything close to a full accounting of the serious compliance issues—notwithstanding that the court should have been notified months earlier, when the issues were discovered.44
The following day, September 27, the head of NSD, Assistant Attorney General John Carlin, abruptly resigned, effective October 15. At the age of forty-three, Carlin had been in the critical post since mid-2013, having formerly served as chief-of-staff to the FBI’s then-Director, Robert S. Mueller III. As chief of NSD, Carlin was among the government officials chiefly responsible for
ensuring the intelligence community’s compliance with court-ordered Section 702 minimization instructions, and for alerting the FISC to non-compliance issues, as required by law and court rules. Carlin had also received regular briefings on the Clinton emails and the Trump–Russia investigations. Carlin had also been the top national security official who, on March 11, 2016, publicly announced the guilty plea of Evgeny Buryakov—the Russian spy against whom Carter Page had provided key assistance to the Justice Department and FBI.45
On October 4, the FISC held a standard follow-up hearing to discuss the government’s September 26 submission. NSD chief Carlin was reportedly present at the proceeding, which was uneventful because the government, again, failed to disclose the compliance issues the NSA’s internal audits had begun uncovering ten months earlier. Carlin left the government eleven days later, replaced by his deputy, Mary McCord—who thus assumed responsibility for the NSD’s oversight role in the FBI’s Trump–Russia investigation. Carlin did not resurface until the public announcement that he had taken a job in the private sector in January 2017.46 Meanwhile, the NSD and FBI obtained a FISA surveillance warrant against Carter Page on October 21, after Carlin’s departure and before the FISC was alerted to the Section 702 irregularities. The Page surveillance involved an individualized warrant to monitor an American citizen alleged to be acting in the United States as an agent of a foreign power; it was not a Section 702 operation. As we shall see, however, it raises similar issues of Obama administration withholding of salient information from the FISC.
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