Inspector General's Report On Investigation Of Trump Campaign Finds More FISA-Related Abuse By The FBI

from the and-if-the-FBI-does-this-to-the-big-people,-imagine-what-it-does-to-the-little-p dept

The Inspector General's report [PDF] on the FBI's investigation into Russia's connection to the Trump election campaign has been released. In the 480-page report, there's enough to satisfy both sides of the argument. Those who believe the investigation was never politically-driven will have their hunches confirmed. Those that believe there's a concerted Deep State effort targeting Trump will find just enough in it to affirm those beliefs as well.

The Inspector General behind the report, Michael Horowitz, has never been afraid of calling bullshit on the numerous agencies he oversees. These agencies, on the other hand, do everything they can to thwart his investigations, so if anything crucial seems to be missing from this report, you can probably blame the FBI.

The report clears the FBI of any wrongdoing, at least as far as the "politically-driven" allegations. The IG concluded the FBI did things badly, but did not do them for anti-Trump reasons.

That being said, the more disturbing aspects of the report deal with the FISA court and the FBI's casual abuse of its surveillance authorities. Not much is known about the FBI's domestic surveillance efforts -- at least not those authorized by the Foreign Intelligence Surveillance Act. While the FBI routinely performs "backdoor" searches of domestic communications harvested by the NSA's foreign-facing surveillance efforts, we have yet to see an actual FISA affidavit from the FBI.

The affidavits reviewed by IG Horowitz involved the surveillance of Carter Page, hat-wearer and foreign policy advisor for the Trump campaign. The super-secret process has rarely been this closely examined before. What it shows is the FBI playing fast and loose with its surveillance powers. Here's Charlie Savage's take for the New York Times:

[T]he inspector general found major errors, material omissions and unsupported statements about Mr. Page in the materials that went to the court. F.B.I. agents cherry-picked the evidence, telling the Justice Department information that made Mr. Page look suspicious and omitting material that cut the other way, and the department passed that misleading portrait onto the court.

Here's what the report says:

Our review found that FBI personnel fell far short of the requirement in FBI policy that they ensure that all factual statements in a FISA application are "scrupulously accurate." We identified multiple instances in which factual assertions relied upon in the first FISA application were inaccurate, incomplete, or unsupported by appropriate documentation, based upon information the FBI had in its possession at the time the application was filed.

The FBI was so interested in keeping Carter Page under surveillance that it manipulated the facts it had to better fit the actions it wanted to take. In the FBI's initial wiretap application, the agency cherry-picked info from informants to find anything that might possibly suggest Carter Page was the connective tissue between Donald Trump and the twice-convicted Paul Manafort. When it came time for the wiretap renewal, the FBI chose to withhold new information that contradicted some of the original probable cause it had supplied to the FISA court on its first application.

This is just the FBI adding onto its not-so-proud tradition of misleading the FISA court. As far back as 2002, the FISA court was already complaining about the FBI's "inaccurate affidavits." Not much seems to have changed. If this report is any indication of the FBI's general approach to submitting affidavits, agents are massaging weak correlations into something approaching probable cause and continuing this abusive editing process for every renewal. The procedures introduced following the FISA court's 2002 criticism don't appear to be having much of an effect.

The FBI will get yet another chance to start acting like a trustworthy government agency. More pressure is being placed on it from its oversight. The Inspector General's office says another audit is underway -- this time to determine just how often the FBI fudges facts on FISA applications.

Given the extensive compliance failures we identified in this review, we believe that additional OIG oversight work is required to assess the FBI's compliance with Department and FBI FISA-related policies that seek to protect the civil liberties of U.S. persons. Accordingly, we have today initiated an OIG audit that will further examine the FBI's compliance with the Woods Procedures in FISA applications that target U.S. persons in both counterintelligence and counterterrorism investigations.

These findings will be of considerable public interest, but given how much secrecy surrounds FISA court proceedings, it's unclear when, or if, we'll ever see this report. So far, nothing seems to be making the FBI handle its considerable power more responsibly. The FISA court isn't adversarial. Few people criminally charged as the result of FISA-ordained surveillance have the opportunity to challenge this evidence in court. The worst thing that can happen to the FBI is periodic benchslaps by FISA judges. And the opinions and orders containing these benchslaps generally aren't cleared for public consumption until years after the fact. That's not much of a deterrent.

There's a Deep State problem out there, but it's not politically-motivated. It's not the FBI vs. politicians it doesn't like. It's the FBI vs. Americans it wants to place under surveillance via a court supposedly interested in the gathering of foreign intelligence. Ordinary domestic surveillance produces paper trails that must be turned over in trial courts. FISA surveillance does not, which is why the FBI loves having this option.

Filed Under: 4th amendment, fbi, fisa, fisa court, fisa warrants, fisc, inspector general, oversight, surveillance

FISA Court Finds The FBI Is Still Violating The Fourth Amendment With Its Abuse Of NSA Collections

from the no-surprises-here dept

The NSA isn't the only agency to abuse its surveillance powers. The FBI's ability to access unminimized data harvested by the NSA has resulted in abuse after abuse, as the FBI loves to use the massive data haul to perform "backdoor searches" of its domestic targets.

This concern has been raised repeatedly, most notably by Sen. Ron Wyden, who has been calling out surveillance abuses for years -- specifically calling out these backdoor searches and hinting (strongly) that they are much more prevalent than most people believed. Nothing much has been done about it, other than multiple federal agencies suggesting they too should be put on the ever-growing list of entities with access to the NSA's multiple collections.

A FISA Court opinion released by the Office of the Director of National Intelligence (ODNI) details even more abuse of the NSA's Section 702 collections by the FBI. When you give an agency the power to dig into massive amounts of data with minimal oversight, abuses will happen. But this goes further than "inadvertent" collections or erroneous access of unminimized data. This ruling [PDF] -- first reported on by the Wall Street Journal -- shows the FBI treats sensitive collections as its personal playground.

The October 2018 court ruling identifies improper searches of raw intelligence databases by the bureau in 2017 and 2018 that were deemed problematic in part because of their breadth, which sometimes involved queries related to thousands or tens of thousands of pieces of data, such as emails or telephone numbers. In one case, the ruling suggested, the FBI was using the intelligence information to vet its personnel and cooperating sources. Federal law requires that the database only be searched by the FBI as part of seeking evidence of a crime or for foreign-intelligence information.

In other instances, the court ruled that the database had been improperly used by individuals. In one case, an FBI contractor ran a query of an intelligence database—searching information on himself, other FBI personnel and his relatives, the court revealed.

The partially-redacted, 138-page opinion makes it clear the FBI has frequently abused its access to the NSA's surveillance collections, which include emails, phone numbers, and a host of other digital detritus. Using collections authorized only to be used for national security purposes to perform security reviews of FBI personnel is obviously contrary to the intention of the program -- a purpose that is always reiterated loudly any time someone suggests surveillance should be curtailed. This opinion vindicates Wyden's incessant demands the FBI come clean about its backdoor searches. Wyden argued the FBI abused this power frequently. This opinion makes it clear the FBI abuses its "backdoor" access to domestic data constantly.

The weirdest thing is the Trump DOJ argued in court the program the FBI abused cannot be modified without harming the security of the nation. Yep, the administration that claims the "Deep State" is out to get it showed up in court to argue the Deep State should not have its power curtailed.

The court rejected this faulty premise. It also pointed out how severely any misuse of this power contains the potential to harm dozens, if not thousands, of people. Considering the breadth of the collection, running a single improper search returns hundreds, if not thousands, of records the FBI has no business retrieving. Using the database to vet employees or perform natsec vanity searches does not comply with the restrictions on the FBI's searches, which are only supposed to return data related to criminal activity (and then only certain crimes) and/or foreign intelligence information.

As usual, Sen. Ron Wyden was the first to go on record criticizing the FBI and its backdoor searches following the release of the FISA opinion.

Last year, when Congress reauthorized Section 702 of FISA, it accepted the FBI's outright refusal to account for all its warrantless backdoor searches of Americans. Today's release demonstrates how baseless the FBI's position was and highlights Congress' constitutional obligation to act independently and strengthen the checks and balances on government surveillance. The information released today also reveals serious abuses in the FB's backdoor searches, underscoring the need for the government to seek a warrant before searching through mountains of private data on Americans. Finally, I am concerned that the government has redacted information in these releases that the public deserves to know.

Wyden makes good points. And they're points he's made for years. Unfortunately, the FBI continues to do the stuff it shouldn't and the public has to read between the redactions in an (often vain) attempt to see what's being done to them in the name of "national security."

The abuses will continue until Congress or the FISA Court decide they've seen enough. While both entities have chastised agencies with access to NSA collections, neither have taken any action that will head off future misuse of surveillance databases in the future. We're a reactionary nation when it comes to surveillance abuse and that's just not going to prevent future abuses. But that's the nature of the national security beast. No one's allowed to know what's going on until after everything bad has happened.

Filed Under: 4th amendment, backdoor searches, fbi, fisa court, fisc, nsa, odni, ron wyden, vanity searches

Federal Court Says NSA PRISM Surveillance Good And Legal Because The Gov't Said It Was Good And Legal

from the 'those-DOJ-guys-are-real-straight-shooters' dept

Three years after its inception, a prosecution involving possibly unlawful FISA-authorized surveillance, hints of parallel construction, and a very rare DOJ notification of Section 702 evidence has reached a (temporary) dead end. The defendants challenged the evidence on multiple grounds -- many of which weren't possible before the Snowden leaks exposed the breadth and depth of the NSA's domestic surveillance.

The federal judge presiding over the case -- which involved material support for terrorism charges -- has declared there's nothing wrong with anything the NSA or FISA Court did, so long as the surveillance was authorized and possibly had something to do with national security. (via FourthAmendment.com)

First, the defendants -- all accused of providing material support to Al Qaeda (remember them?) -- asserted the constitutionality of the NSA's upstream collections should be revisited in light of the Snowden leaks. The court [PDF] says these more-recent exposures are no reason to upset the precedential apple cart.

Controlling precedent decides this issue. In 2005, the Sixth Circuit rejected a Fourth Amendment challenge to FISA's procedures. The court explained in Damrah that the defendant's Fourth Amendment challenge lacked merit, as "FISA has uniformly been held to be consistent with the Fourth Amendment." Damrah has not been overturned or altered in light of the public disclosures regarding PRISM and upstream collections. And consequently, Damrah forecloses Defendants' constitutional challenge.

So, to add this all up: leaked documents from 2013 onward, exposing routinely-abused programs that massively expanded following the 2008 FISA Amendments Act, mean nothing when stacked up against a 2005 case predating the NSA's admissions of surveillance abuse and the exposure of the FBI's backdoor searches of domestic communications.

Furthermore, the court declares -- based on documents provided by the government directly to the court, but not to the defendants (in ex parte hearings) -- the FISA-authorized surveillance was on the up-and-up because the government provided documents declaring the FISA-authorized surveillance was on the up-and-up.

The court is sympathetic to those on the other side of the deck it helped stack, but only barely.

I recognize the challenge faced by a defendant in making a substantial preliminary showing that a FISA application contains a false statement when the defendant does not have access to the application. But the threshold burden exists nonetheless. [...] And here, Defendants have failed to satisfy that burden.

Oddly, the court then decides, after pulling from a 2005 decision and ignoring every FISA-related development since then, that previous domestic surveillance violations by the FBI have no bearing on this case.

The Government's errors from more than a decade ago [referring to a 2004 IG report about post-9/11 surveillance] do not amount to a substantial preliminary showing that an application for FISA collection relevant to this case contains a false statement which was knowingly or recklessly made and necessary to the finding of probable case.

Yes, this is true. These are not comparable things. But with the defendants unable to review the FISA applications, they're left with the judge's take as guided by government submissions -- submissions the defendants are also unable to review or even argue.

As for the Fourth Amendment challenge to Section 702 surveillance generally, the court says there's really no Fourth Amendment issues as this does not apply to "aliens in foreign territory." The court goes even further, though, suggesting the collection of communications outside of the country does not even require a warrant, even if it "inadvertently" sweeps up Americans' communications during the process.

Since the court has also unilaterally decided it can -- unaided by anyone but the government -- decipher the government's FISA-related submissions, there are no due process violations even if the defendants are prevented from viewing, analyzing, or rebutting the claims made by the government during these ex parte sessions. In the end, there's nothing left for the defendants to do but appeal, which will certainly happen what with the court dismissing out of hand the evidence provided by multiple leaked documents and documents officially released by the Director of National Intelligence. To buy the government's claims of above-board surveillance in secret court sessions and declare those NATSEC Kosher seems like a very close-minded move that grants the government more deference than documents the government released publicly itself shows it has earned.

Filed Under: 4th amendment, fisa, fisa court, fisc, mass surveillance, nsa, prism, privacy, surveillance

Another Batch Of FISA Court Docs Confirms The NSA Frequently Abuses Its Collection Powers

from the violating-the-law-on-the-regular dept

More evidence of the NSA's abuse of its surveillance powers has surfaced, thanks to a FOIA lawsuit by the EFF. To date, the EFF has secured 73 FISC opinions as the result of this lawsuit and is still fighting for the release of six opinions the government has chosen to withhold entirely.

One of the opinions released to the EFF shows the NSA's frequent assertions about proper minimization, careful deployment of surveillance techniques, and supposedly robust oversight are mostly false. The NSA abuses its powers and withholds evidence of its abuses from the FISA court, undermining the system of checks and balances meant to keep the agency in line.

The opinion [PDF] embedded below is just one of several recently acquired by the EFF, but it still shows plenty of surveillance power abuse by the agency. Aaron Mackey of the EFF summarizes the contents of the order:

The opinion, the date of which is redacted, orders the deletion of materials the NSA collected without court authorization. The opinion recounts how after the court learned that the NSA had exceeded an earlier issued surveillance order—resulting in surveillance it was not authorized to conduct—the government argued that it had not actually engaged in unauthorized surveillance. Instead, the government argued that it had only violated “minimization procedures,” which are restrictions on the use of the material, not the collection of it.

Judge Hogan, who served on the FISC from 2009-16 and was its chief judge from 2014-16, expressed frustration both with the government’s argument and with its lack of candor, as the court believed officials had previously acknowledged that the surveillance was unauthorized. The opinion then describes how the surveillance failed to comply with several provisions of the Foreign Intelligence Surveillance Act (FISA) in collecting the intelligence.

Much of the opinion is redacted, leaving only sentence fragments for readers to parse. But even these fragments manage to produce a decent depiction of apparently long-running program abuses by the NSA. What the court called "unauthorized electronic surveillance," the government claimed was only a violation of minimization procedures. Even if the court was willing to cede this argument to the government (and it wasn't), the court goes on to point out that the NSA had done nothing to address this violation of minimization procedures.

The government has undertaken, but not completed, a process to identify and destroy [redacted], such that the effects of having acquired [redacted] have not been completely eradicated.

A little further on, the court makes it clear repairing minimization procedures does not excuse prior unauthorized collections, nor would it make similar collections legal in the future.

It has been understood from the inception of FISA that minimization procedures could include limitations on what communications may be acquired from surveillance directed at an otherwise authorized facility. When the government disregards such a limitation, thereby acquiring communications in excess of what the order authorizes, those acquisitions constitute unauthorized electronic surveillance…

And it appears the NSA again withheld info from the court, preventing it from doing its job properly.

[T]he Court was deprived of an adequate understanding of the facts known to NSA and, even if the government were correct that acquisition [redacted] was authorized, a clear and express record of that authorization is lacking.

This is only one of several FISA court documents discussing unauthorized collections. The stockpile of FOIAed documents indicates the government has rarely used its collections programs correctly. The history of the NSA's interactions with the FISA court is littered with references to over-collection and agency obfuscation. This is more of the same from an agency that claims to be precisely and thoroughly controlled by external and internal oversight. The FISA court documents don't align with the NSA's narrative. Instead, they show an agency willing to ignore the law and mislead the court to engage in surveillance its oversight has never authorized.

Filed Under: abuses, fisa court, fisc, foia, nsa, surveillance
Companies: eff

Brief To FISA Court Says The Presumption Of Openness Should Apply There, Too

from the it's-a-court,-not-a-wing-of-the-NSA dept

The court system belongs to the people. That's what a "presumption of openness" means. It's a public system, accessed by the public or by representatives of the public. With rare exception, documents filed with the court system should be made available for viewing by the public.

The FISA court, which oversees a multitude of surveillance programs and national security investigations is a closed book. Until very recently, it operated in total darkness, much like the agencies seeking its approval for surveillance. The Snowden leaks changed that, moving it very slightly closer to a presumption of openness.

The Director of National Intelligence -- nodding towards transparency in a mostly self-serving way -- has begun to declassify orders and rulings from the FISC. But a majority of FISC documents released by the ODNI haven't come from this hesitant step towards transparency. They've been forced out the government's hands by numerous FOIA lawsuits.

Access to court documents shouldn't have to be litigated, even in the FISA court. That's the argument being made by Georgetown professor Laura K. Donohue in her FISA court brief [PDF]. The long, very interesting brief covers a number of issues and government arguments, but it all boils down to public access as a presumption, rather than a grudging concession after a courtroom loss in a FOIA case.

Her brief note the FISA court controls the documents submitted to it and the orders/opinions it issues. When it decides its subservient to surveillance agencies and their national security assertions, the system of checks and balances is thrown out of whack. That's what's happened over the 40 years the court has been in operation. Government agencies and a number of administrations have decided it does not have the discretion to handle the release of court documents.

This is obviously wrong. Donohue's brief sets the stage with a dismantling of the government's opacity arguments -- all designed to override the court's inherent authority to control the release of court documents. [Paragraph breaks added for readability.]

FISC has inherent supervisory authority over its own records and therefore exercises non-statutory jurisdiction over all common law and First Amendment public rights of access. Each of the... arguments offered by the response brief to the contrary fails.

First, the jurisprudence establishes that no statutory cause of action is required for the court to exercise its inherent powers. The court with original jurisdiction over the case oversees all contemporaneous and future motions for access to records. None of the myriad inherent powers cases at issue rely on a separate, statutory cause of action. The FISC would have to rule against the Supreme Court, every circuit, and four prior decisions of the FISC, to find for the government…

There's plenty of precedent to be had but the government wants to ignore it. Instead, it would rather funnel access through the FOIA process so it can retain complete control over documents filed in court, claiming the court's power for itself. But the government also wants it both ways and will "allow" the FISC to control court documents if it seems like a better route for an FOIA denial.

FOIA cannot serve as a substitute for judicial action as it does not (because it cannot) create a cause of action for records held by the judiciary. That statute focuses exclusively on agency records. Regardless of whether the executive branch happens to have judicial records in its files, as the Supreme Court has held, courts retain jurisdiction over their own documents.

The government response brief is further in tension with two arguments that the government has elsewhere raised. In both district court and at the FISC, it has argued that even under FOIA, FISC opinions are still subject to the FISC's control, suggesting that the court does, in fact still retain jurisdiction. Perhaps more concerning, the government has gone into district court and argued that because the FISC is a specialized court, the district court should not exercise jurisdiction over FISC records-an argument at odds with the argument it advances in its representations to this court, where it suggests that (non-specialized) district courts have jurisdiction over FISC documents.

The presumption of openness and disclosure should include the FISA court. The American public has a right to know what the government's doing with its money and its tacit approval. If there are national security concerns, they must be explicitly detailed rather than broad-brushed across a stack of documents. The FISC should ensure the government doesn't cut corners on its redaction paperwork.

And that's the very reason redacting exists. The government could allow the release of documents as soon as they're redacted (after making their case in court) to protect national security interests. Opening up the FISA court doesn't mean exposing a long list of surveillance means and methods. It simply means treating the FISA court like any other federal court where documents and dockets can be viewed by the public to better educate themselves on legal processes, issues, and government activities. Considering the NSA's long history of abuses, the more eyes on the process the better, especially when its oversight has devolved into a partisan point-scoring exercise.

The never-before-seen release of FISA warrant affidavits should be the tip of the iceberg. There's a lot the court oversees and it's doing it with almost no assistance from the outside. This leaves it at the mercy of the agencies seeking its approval. That's not the way the system should work.

Filed Under: court system, fisa court, fisc, openness, transparency

Breaking With 30 Years Of Traditional Opacity, DOJ Releases FISA Warrant Applications For Surveillance Of Carter Page

from the FOIA-ACHIEVEMENT-UNLOCKED dept

The Trump Administration can claim a historic first, even though it would probably rather not do so. As the result of multiple FOIA lawsuits -- whose arguments were strengthened by Trump's tweets and statements from the House Intelligence community -- the DOJ has released a stack of FISA warrant applications. This has never happened in the 30-year existence of the FISA court.

The 412-page document [PDF] (which is actually four warrant applications and their accompanying court orders) detail the FBI's surveillance of Carter Page, alleged agent of a foreign power. The affidavits detail Page's connections to Russia, as well as the FBI's reliance on contested Steele dossier to build its case.

There are a lot of redactions that obscure Page's ties to Russian government officials, intelligence officers, and business owners, but there's enough left out in the open to draw some inferences. What's most interesting about the warrant applications is how often they rebut assertions made by Devin Nunes and his supposedly-damning memo.

Nunes portrayed this investigation as an abuse of surveillance powers to spy on the Trump campaign. Unfortunately for this member of the Intelligence Oversight Committee, the documents make it clear surveillance of Page didn't begin until after he had left his position as an adviser to Trump.

That doesn't mean Trump is off the hook in terms of collusion. The documents also refer to other members of Trump's campaign team "perhaps" being involved with Russian officials and intelligence services during the campaign.

The affidavits also undercut Nunes' and Trump's claims the FBI misled the FISA court about the origins of the Steele Dossier. Both claimed the FBI did not disclose the fact this dossier had been funded by Trump's political opponents. Footnotes attached to the very first warrant request expressly state Steele ("Source #1") had been hired by to dig up dirt on Trump's Russian connections by an outside law firm.

Source #1, who now owns a foreign business/financial intelligence firm, was approached by an identified U.S. person, who indicated to Source #1 that a U.S.-base law firm had hired the identified U.S. person to conduct research regarding Candidate #1's ties to Russia… The identified U.S. person hired Source #1 to conduct this research… The FBI speculates that the identified U.S. person was likely looking for information that could be used to discredit Candidate #1's campaign.

Unfortunately, a majority of the truly interesting stuff is redacted. We don't have many details about Page's involvement with Russian powers or what other criminal acts the FBI suspected he was engaged in. There's no unredacted discussion of the surveillance tactics deployed or how many non-targets may have been swept up in the FBI's intercepts. What is left unredacted is only enough to see how many Russian officials Page had access to and how they used him (one instance is left unredacted) to influence Trump's Russia-directed statements during the election campaign.

Does this mean we'll see more FISA surveillance applications released in the future? It seems doubtful. There aren't any others that have received so much public discussion from high-ranking government officials -- the very thing that undercut the DOJ's attempt to Glomar its way out of producing documents. This investigation is different. It has direct ties to the current president -- another high-ranking official who couldn't stop talking about the FISA affidavits the DOJ kept refusing to acknowledge existed. It's good these have been made public and it may eventually lead to even more transparency from the nation's most-secretive court. But this has the feel of an anomaly -- the byproduct of a highly-anomalous presidency.

Filed Under: carter page, fisa application, fisa warrant application, fisc, foia, russia, trump campaign

DOJ Readying Warrants In Carter Page Investigation For Public Release

from the giving-the-Republicans-what-they-may-not-want dept

For the first time since the FISA court opened for national security business, the DOJ is considering declassifying FISA warrant applications. The documents are linked to the FBI's surveillance of former Trump campaign aide, Carter Page. Both sides of the political aisle have asked for these documents, which is something you'd think they'd have wanted to see before issuing their takes on perceived surveillance improprieties.

Devin Nunes -- following the release of his memo -- sent a letter to the FISA court asking it to clear the warrants for public release. The court's reply, penned by Judge Rosemary Collyer, pointed out two things. First, the FISA court had never released these documents publicly, nor was it in the best position to do so. It is only tasked with determining whether or not surveillance is warranted and to what restrictions it must adhere. It does not have the innate power to declassify documents, nor can it arbitrarily decide what documents have gathered enough public interest to outweigh the government's perpetual demands for secrecy.

The court did point out this release could be achieved much faster if Nunes directed his question to the DOJ, which does have the power to declassify its own investigation documents. It doesn't appear Devin Nunes has approached the DOJ but litigants in an FOIA lawsuit have, and they're looking at possibly obtaining the documents Devin Nunes requested from the FISA court.

The government is considering an unprecedented disclosure of parts of a controversial secret surveillance order that justified the monitoring of former Trump campaign aide Carter Page.

Responding to a legal challenge brought by USA TODAY and the James Madison Project, Justice Department lawyers Friday cast the ongoing review as “novel, complex and time-consuming.”

“The government has never, in any litigation civil or criminal, processed FISA (Foreign Intelligence Surveillance Act) applications for release to the public,” Justice lawyers wrote in a five-page filing.

The filing [PDF] notes that the President's unilateral decision (over the DOJ's objection) of releasing the Nunes memo has forced it to reverse some of its Glomar declarations in ongoing FOIA lawsuits, since it's impossible to maintain a stance of non-confirmation and non-denial when the White House is handing out confirmation left and right.

The DOJ has asked for four months to review the documents before returning to the court with its final answer on public release. There will probably be further delays from this point, as the DOJ will need the FISA court to officially unseal documents before it can turn these over to the litigants. It notes the plaintiffs are not happy with this timetable, but points to the presumed complexity of a task it has never undertaken previously as the reason it needs 120 days before the litigation can move forward.

This administration continues to break new grounds in inadvertent transparency. However, the release of these documents may further undermine the Nunes Memo narrative, so legislators and White House officials hellbent on using the FISA court to score political points should be careful what they wish for.

Filed Under: carter page, devin nunes, doj, fbi, fisa court, fisc, warrants

Nunes Demands Copies Of FISA Docs About Steele Dossier Warrants; Court Suggests Taking It Up With The FBI

from the god-I-so-hope-Nunes-takes-it-up-with-the-FBI dept

Having already released the memo purportedly showing surveillance abuses committed by the FBI, the legislators behind the release are now getting around to asking for documents to back up the memo's assertions. Bob Goodlatte and Devin Nunes have both asked the FISA court for the paperwork they probably should have looked at before writing and releasing the memo.

Nunes has asked for "transcripts of relevant FISC hearings" related to the FISA warrants predicated largely on assertions made in Steele dossier. Goodlatte has asked applications and orders for the same warrants. The FISA court has replied with two letters stating basically the same thing: thanks for the weird (and inappropriate) question, but maybe take this up the FBI. (h/t Zoe Tillman)

From the letter [PDF] sent by Judge Rosemary Collyer to Devin Nunes:

The Court appreciates the interest of the House Intelligence Committee in its operations and public confidence therein. Before 2018, the Court had never received a request from Congress for documents related to any specific FISA application. Thus, your requests -- and others I have recently received from Congress -- present novel and significant questions. The considerations involve not only prerogatives of the Legislative Branch, but also interests of the Executive Branch, including its responsibility for national security and its need to maintain the integrity of any ongoing law enforcement investigations.

While this analysis is underway, you may note that the Department of Justice possesses (or can easily obtain) the same responsive information the Court might possess, and because of separation of powers considerations, is better positioned than the Court to respond quickly. (We have previously made clear to the Department, both formally and informally, that we do not object to any decision by the Executive Branch to convey to Congress any such information.)

The response [PDF] to Goodlatte pretty much says the same thing. Both letter close with a little bit of shade-throwing.

I expect that [the DOJ and FBI's] handling of your requests will inform the Court as to how the Executive Branch perceives its interests and will assist us in our consideration of the full range of issues…

This seems to suggest the FISA court has noticed (how could it not) the contentious relationship between the FBI and the White House and wants to see how the DOJ handles its end of the paperwork requested by the legislators before proceeding. It also implies the court thinks the White House will sidestep its obligations to preserve the integrity of national security-related obligations if it thinks it can score some political points. If the court really felt like laying on the snark, it might have mentioned the utility of viewing underlying documents before releasing a "damning" memo, rather than attempting to find justification for the memo's accusations after the fact.

Filed Under: bob goodlatte, devin nunes, doj, fbi, fisa application, fisa court, fisc, nunes memo, rosemary collyer, steele dossier

Congressional Discussion On Section 702 Renewal Postponed Until 2018

from the good-news[?] dept

It appears we won't be seeing any action on Section 702 until next year. The authority was supposed to sunset at the end of 2017, but legislators have yet to reach an agreement on any modifications or reforms.

As 2017 comes to a close, Congress, still divided over how (or whether) to limit federal surveillance authorities, has kicked the can down the road to at least January 19.

As part of a continuing resolution to keep the federal government running for a few more weeks, Congress extended the deadline to decide what to do about Section 702 of the Foreign Intelligence Surveillance Act (FISA) Amendments.

This is probably the best solution for now. While there have been some serious efforts made to reform Section 702, none of those efforts have been allowed to reach the floor for a vote. Instead, both the House and Senate Oversight Committees have offered up horrible zero-reform bills as "official" 702 remixes -- both of which expand government agency access to NSA data stores and push the next sunset as far away as 2025.

Going into the final days of the year with no reform package, the suspicion was legislators would append one of the two terrible bills as a rider to the annual must-pass budget bill, thus circumventing any real debate about the NSA's controversial collections.

With the pressure off (temporarily) -- thanks to the passed resolution -- there may be a chance for actual legislative discussion about the oft-abused programs. If talks are productive enough, we may see these powers pruned a bit before being reauthorized. (There is zero chance of a total sunset, even though sunset provisions are put in place to provide for eventual retirement of collection authorities.) Given the new administration's obvious approval of anything remotely connected to the War on Terror, it's going to be difficult to enact significant reforms, no matter when they're finally discussed. No matter what happens in 2018, we can at least be grateful Congress didn't auction off the general public's interests in favor of ensuring government agencies continue to get paid.

It's important to remember none of this would be happening without Edward Snowden. The documents he leaked pushed the Intelligence Community towards more transparency, resulting in the release of FISA court opinions and Inspector General's reports showing widespread abuse/misuse of Section 702 collections by the NSA. Without the leaks, it's unlikely the NSA would be any more transparent than it was back when it was referred to as No Such Agency. Our government's dragnet surveillance operations would still be cloaked in impenetrable darkness and its abuses of power its own dirty little secret.

Filed Under: congress, fisa, fisc, postponed, privacy, section 702, surveillance