FISA Court Says FBI May Be Abusing Surveillance Powers; Will Continue To Allow It To Abuse Surveillance Powers

from the but-the-court-has-made-it-clear-it's-disappointed dept

Reform efforts following the Snowden leaks led to some minor improvements at the FISA Court. The USA Freedom Act gave the court permission to allow someone to present the side of the surveilled from time to time and introduced some reporting requirements that allowed Americans to see just a bit more about how their surveillance tax dollars were spent.

But if anything is going to change the way America's surveillance agencies perform their duties, it's going to be up to the FISA Court, which can reject requests and shut down surveillance programs until they're fixed. The Section 215 collection of phone records may have reached an early end-of-life after the untargeted bulk collection of phone records was banned, but other surveillance authorities continue unaltered. The one that leads to most surveillance abuses is one the court can't seem to bring under control: Section 702.

This is supposed to be surveillance of foreign national security targets, but agencies with access to 702 collection far too routinely use this as a backdoor to American's communications. And nothing about that has changed, eight years down the road from the Snowden leaks. A newly declassified decision [PDF] from the FISA Court shows the court is still willing to overlook egregious abuses of this authority to spy on Americans.

Here's the EFF's summary of last November's decision -- one made public late last month by the FISA Court.

[T]he FISC again found that a series of overly complex but still ultimately swiss cheese agency protocols -- that are admittedly not even being followed -- resolve the Fourth Amendment problems caused by the massive governmental seizures and searches of our communications currently occurring under FISA Section 702. The annual review by the FISC is required by law -- it’s supposed to ensure that both the policies and the practices of the mass surveillance under 702 are sufficient. It failed on both counts.

The key part of this summary is this: "admittedly not being followed." Even when the government admits it's violating rights, the FISA Court says that's ok… as long as the government admits it. Candor is appreciated, but it would be better if the government stopped violating its own protocols and the rights of Americans. That's where the FISA Court should draw the line. But it doesn't. And it hasn't in years.

While the Court has expressed concerns about certain communications being swept up in 702 collections and disseminated to agencies who won't use this information solely for national security purposes, it's ok with that happening, so long as the NSA and other agencies check all the internal guideline boxes before violating the Fourth Amendment or, as is specifically discussed in this case, accessing privileged attorney-client communications.

The FISA Court says it has no problem with the NSA accessing privileged communications since it won't be directly involved in any criminal cases. But it can see how other agencies without the same foreign-facing directives might end up in the possession of privileged conversations.

That being said, the government is admonished to guard against the possibility that NSA, in compliance with its procedures, might disseminate to FBI a report based on a privileged communication described in Section 5(c) of the NSA procedures (pertaining to a criminal charge in the United States) that, had the FBI obtained it through its own collection efforts, the FBI would be required to sequester with the Court under FBI Minimization Procedures…

Swell, but the Court goes on to say this isn't something it's going to worry about.

The Court again concludes that NSA’s procedures, as a whole and applied to it, an agency with no law-enforcement mission or authority, are reasonably designed to protect the substantial privacy interests in attorney-client communications, consistent with the need to exploit those communications for legitimate foreign-intelligence purposes.

This kind of ignores the fact that prosecutions of foreign terrorists generally involve US courts. So even if the NSA isn't exactly in the law enforcement business, its collections aid and abet domestic law enforcement agencies that do directly work with prosecutors and build criminal cases.

Marcy Wheeler's summary of the FISA opinion is even more caustic. Here's the bullet point breakdown of the Court's acquiescence to the government's claims that it's really, really hard to keep the FBI from looking at stuff it's not supposed to be looking at when it accesses 702 collections.

• It took time for them to make the changes in their systems

• It took time to train everyone

• Once everyone got trained they all got sent home for COVID

• Given mandatory training, personnel “should be aware” of the requirements, even if actual practice demonstrates they’re not

• FBI doesn’t do that many field reviews

• Evidence of violations is not sufficient evidence to find that the program inadequately protects privacy

• The opt-out system for FISA material — which is very similar to one governing the phone and Internet dragnet at NSA until 2011 that also failed to do its job — failed to do its job

• The FBI has always provided national security justifications for a series of violations involving their tracking system where an Agent didn’t originally claim one

• Bulk queries have operated like that since November 2019

In short, the FBI keeps screwing up. And it keeps telling the FISA Court it will do better. Then the FBI doesn't actually improve and the Court gives it a pass because it's trying to try. The bulwark put in place to deter the government from abusing its powers and violating rights isn't doing its job. It's deciding that national security work is too important to subject to serious judicial scrutiny.

Filed Under: abuse, doj, fbi, fisa, fisa court, fisc, mass surveillance, nsa, section 702, surveillance, usa freedom act

FISA Court Decides FBI, NSA Surveillance Abuses Should Be Rewarded With Fewer Restrictions On Searching 702 Collections

from the hey-we've-got-terrorists-to-catch-and-whatnot dept

A heavily-redacted opinion has been released by the FISA Court. Even with the redactions, it's clear the NSA and FBI have continued to abuse their Section 702 privileges. But rather than reject the government's arguments or lay down more restrictions on the use of these collections, the court has decided to amend the rules to make some of these abuses no longer abuses, but rather the new normal. This means there are now fewer protections shielding Americans from being swept up by the NSA collections or targeted using this data by the FBI.

Elizabeth Goitein of the Brennan Center has a good rundown of the abuses and the court's response. She points out in her Twitter thread that some of this can be traced back to the reforms enacted by the USA Freedom Act, which codified some restrictions but didn't go far enough to prevent future abuses or mandate better reporting of rule breaking by these agencies.

The opinion [PDF] notes the NSA found it too difficult to comply with a Section 702 requirement that at least one end of targeted communications involve someone outside of the United States. When faced with following this requirement and possibly losing access to communications it wanted, it simply chose to ignore the requirement.

On some prior occasions when NSA had tasked apparently [redacted] it violated its current targeting procedures [redacted] apparently in order to avoid loss of foreign-intelligence information. See Preliminary Notice of Compliance Incident Regarding [redacted] Certain Upstream Acquisitions, Feb. 21, 2019. Of course, the proper course would have been to seek amendment of the procedures earlier, rather than unilaterally deciding to deviate from them. Indeed, the Court's October 3, 2019, Order required the government to provide additional information about the disposition of information that was improperly acquired as a result of that incident.  

That's the problems with the "upstream" collection. The "downstream" collection has similar problems.

The Notice filed on August 23, 2019, explains that [redacted] post-tasking checks for selectors for certain [redacted] would not result in useful information regarding the location of the targets who use those facilities. See August 23, 2019, Notice, at 2-3. In anticipation of tasking such facilities, the proposed NSA targeting procedures have been revised to require [redacted] post-tasking checks only "in those cases in which [NSA]is technically capable of' performing them.

The courts says all of this is fine. It doesn't want the NSA to lose access to foreign intelligence information by tossing out stuff it can't be sure originated outside of the United States. It also doesn't want the NSA to lose similar information on the downstream side by tossing out anything whose origin can't be determined. So the court says it's the thought that counts and allows the NSA to disregard these requirements whenever they pose problems to analysts.

The Court expects that [redacted] post-tasking checks will be employed whenever feasible. On that understanding, and in view of the increased frequency with which acquired communications will be reviewed for indications that a target is in the United States when the [redacted] checks are not feasible, this revision does not impede the Court's finding that the 2019 NSA Targeting Procedures are "reasonably designed to ... ensure" that acquisitions are "limited to targeting persons reasonably believed to be located outside the United States."

The court also addresses the NSA's information sharing with the FBI. And it comes to the conclusion that in close cases, the FBI should just get the info and determine on its own whether it's been legally acquired.

Under these provisions, NSA has some discretion in determining what information is "reliable" or "useful," and therefore must be passed to the FBI. The Court expects NSA to make such determinations on an individualized, case-by-case basis, by assessing the totality of information available about a particular target or selector. In close cases, the Court expects NSA to err on the side of providing information to the FBI, rather than withholding it, so that the FBI is better able to make informed and accurate decisions under its targeting procedures.

The FISA court notes this could result in abuse by the FBI but says that risk is worth taking since it would result in more efficient surveillance efforts.

One can conceive of circumstances in which omitting an FBI [redacted] under this provision could result in erroneous approval [redacted]. On the other hand, it seems likely that, in the vast majority of the situations in which the provision would be relied upon, the FBI would simply be avoiding duplicative effort that would not yield relevant new information.

This permission slip by the FISA Court is being handed out despite the FBI reporting recent violations of its Section 702 privileges.

In July 2019, an oversight review of [redacted] discovered 87 queries of raw FISA-acquired information in [redacted] that were not reasonably likely to retrieve foreign-intelligence information or evidence of a crime, including:

- queries of college students participating in a "Collegiate Academy"; and

- queries of individuals who had visited the FBI office (e.g., for maintenance).

The court says the FBI also abused access to run searches on a person filing a complaint and to vet potential informants.

The FBI also reported searching unminimized Section 702 collections 16,000 times -- all supposedly considered likely to "return foreign-intelligence information or evidence of a crime." The court says the FBI can really only justify seven of the 16,000 searches.

There's even more violations listed in the order, but at the end of it, all Judge James Boasberg has to say is that everyone involved did a pretty good job and just needs to try a bit harder in the future. And since trying hard is hard, he's made things easier by loosening a few restrictions. This obviously won't stop the never ending run of surveillance abuses. But it will designate fewer of them as "abuses," so things will at least look like they're improving, even if nothing has really changed.

Filed Under: 702, fbi, fisa court, fisc, nsa, section 202

FBI Lawyer Criminally Charged For Lying To The FISA Court

from the thousands-of-lies;-one-(1)-guilty-plea dept

Earlier this year, the DOJ Inspector General released a report that -- surprise, surprise -- showed the FBI abusing its FISA privileges. The FBI had placed former Trump campaign advisor Carter Page under surveillance, suspecting (but only momentarily) that he was acting as an agent of a foreign power. (Guess which one.)

The report said the first wiretap request might have been valid, but subsequent requests for extensions weren't. The Inspector General said the agency cherry-picked info to keep the wiretap alive, discarding any evidence it had come across that would have ended the surveillance.

Even more damning, it found that FBI lawyer Kevin Clinesmith altered an email from another federal agency to hide Carter Page's involvement with that agency from the FISA court. The FISA court demanded the DOJ hand over information on any other cases before it that Clinesmith might have had a hand in. But that wasn't the end of it. Clinesmith was also referred to the DOJ for criminal charges.

The criminal charge has arrived. The criminal complaint [PDF] was filed in the DC federal district court. It details the email Clinesmith altered and submitted with the Carter Page surveillance extension request to the FISA court in 2017.

The original email -- sent to Clinesmith by an unnamed government agency -- said that Page was an "operational source" for this agency. The "Other Government Agency" (OGA) stated this in the email to Clinesmith:

[M]y recollection is that [Individual #1] was or is… [digraph] (two-letter designation for operational contacts) but the [documents] will explain the details. If you need a formal definition for the FISA, please let me know…

Here's how the email was submitted by Clinesmith to the FISA court (alteration in bold):

My recollection is that [Individual #1] was or is [digraph] and not a "source" but the [documents] will explain the details.

Clinesmith made some other false statements about Page's source status to the Supervisory Special Agent in charge of the case as well, but those aren't criminal offenses… just regular ol' intradepartmental lying.

During a series of instant messages between the defendant and the SSA, the defendant indicated that Individual #1 was "subsource" and "was never a source." The defendant further stated "[the OGA] confirmed explicitly he was never a source." The SSA subsequently asked "Do we have that in writing?"

We do. Falsified writing, but writing nonetheless. See above.

So, what's up next for the FBI liar lawyer? Looks like a felony conviction:

The former FBI attorney, Kevin Clinesmith, will plead to a single felony count of making a false statement, though his lawyer said it was not his intent to mislead the court that approved the original warrant in 2016 and three renewals in 2017.

“Kevin deeply regrets having altered the email. It was never his intent to mislead the court or his colleagues as he believed the information he relayed was accurate,” Clinesmith’s lawyer Justin Shur said in a statement. “But Kevin understands what he did was wrong and accepts responsibility.”

I would hope Clinesmith understood what he did wrong while he was doing it -- not just after being hit with a criminal complaint.

Some will argue Clinesmith's lying was due to his hatred of Trump. After all, special counsel Robert Mueller booted him (along with agents Peter Strzok and Lisa Page) after uncovering anti-Trump text messages sent by the lawyer, including one calling Vice President Mike Pence "stupid" and referring to the current GOP as "tea party on steroids."

But to assume that is to forget the FBI's long history of surveillance/wiretap abuses, its habitual lying to courts, and a penchant for voyeurism that goes far beyond what's necessary to close an investigation. Deep state conspiracies may be fun to construct, but the reality is the FBI has far more power than it has ever been able to wield responsibly.

Filed Under: carter page, fbi, fisa, fisa court, fisc, kevin clinesmith, lies, surveillance

Congress Let Spy Powers Expire Last Month, Which Is Having Almost No Effect On Current Spying

from the hey-you-guys-need-to-knock-it-off-whenever-it's-convenient-for-you dept

Thanks to the goddamn everything else going on in the world right now, we've now learned what happens when Congress lets surveillance authorities expire. Nothing, really. Here's Charlie Savage for the New York Times.

House Democrats left the capital on Friday after passing the $2 trillion coronavirus relief legislation without taking up a Senate bill to temporarily revive three expired F.B.I. surveillance tools for terrorism and espionage investigations, ensuring that the laws will remain lapsed at least until the Senate returns from vacation next month.

The authorities created by the US Patriot Act -- specifically, the bulk collection of business records and roving wiretaps -- both expired on March 15th. More pressing issues backburnered the reauth, which is probably preferable to the alternatives: a blanket reauthorization rush job or some rights-wrecking abomination tacked onto a must-pass coronavirus response bill.

But letting these authorities expire doesn't change much of anything, especially since the FISA Court is presumably on limited duty like other courts in the nation while waiting for the pandemic curve to flatten a bit. It's still business as usual for any surveillance business in progress before the March 15th cutoff, as Julian Sanchez explains.

A so-called savings clause permits the laws to remain in effect for investigations that already existed on March 15, or for new investigations into events that occurred before then.

“The authorities remain available for either investigations open at the time of expiration or investigations predicated on underlying conduct that predates the sunset date,” Mr. Sanchez said.

This means agencies can initiate surveillance using these expired authorities so long as they backdate the impetus for the investigation. We're in the midst of a never-ending War on Terror, so any targets loosely associated with the terrorist networks we've targeted for decades will remain surveilled under expired authorities. And that will continue up until Congress gets around to actually reauthorizing the surveillance that never stopped.

In practice, this means all sorts of surveillance is continuing without explicit Congressional permission. But that's the way the law was written. The escape hatch says nothing needs to stop even when nothing governing surveillance says it's alright to keep going. Securing the nation is too important to be left in the hands of three branches. Congress has cut itself out by not handling the reauthorization in a timely manner. And the FISA Court can't do anything about since it's forced operate (and authorize) in the void Congress created.

There's a lot of power in play here and it's being handled irresponsibly. Just when the FBI has shown it can't be honest with the FISA Court (and hasn't been for most of two decades), no one's stopping anyone from doing anything, much less instituting needed reforms. While tackling the virus may have been the more important job, it's disheartening to know there's really no expiration date on surveillance authorities, no matter what might be said in Congress during these periodic battles over domestic surveillance.

Filed Under: fbi, fisa, fisa court, fisc, patriot act, section 215, surveillance

New Inspector General's Report Finds Even More Problems With The FBI's FISA Surveillance Applications

from the demanding-the-best-people-but-demanding-nothing-from-them dept

The FBI's inability (or unwillingness) to craft factual FISA court affidavits was exposed late last year by an investigation by the DOJ's Inspector General. During the FBI's surveillance of former Trump advisor, Carter Page, information known by the agency was omitted to allow agents to continue its interception of Page's communications. Despite having obtained info showing Page was likely not acting on behalf of a foreign power, the FBI continued its surveillance for months by hiding this key finding from the FISA court.

The fallout from this report continues. The FISA Court banned the FBI agent who lied on the warrant applications. The court also instructed the FBI to start cleaning up its Carter Page mess, including tracking down where any other info it might have illegally collected in this case might have gone, in order to prevent further violations by other agencies in the future.

Current and former DOJ/FBI officials made it clear the FBI's questionable actions in this case were only the agency's most current violations. The skirting of internal guidelines and the truth itself was a common practice dating back nearly 20 years.

The Inspector General's findings in the Page investigation were the tip of the unexpected iceberg. The IG is now looking at the rest of the FBI's FISA work. And the office is finding even more to be concerned about.

The finding of broader failings in the Foreign Intelligence Surveillance Act program came in a review launched by Justice Department Inspector General Michael Horowitz after an earlier inquiry found numerous errors in applications to monitor former Trump campaign foreign policy adviser Carter Page. In a bid to assess whether the faults in the Page’s surveillance process were an aberration or a chronic problem, Horowitz’s audit team zeroed in on 29 applications for surveillance of U.S. citizens or green-card holders over a five-year period.

Horowitz found an average of 20 errors in each of the applications.

It's impossible to say how many of these errors were accidental or deliberately induced. But an average of 20 errors per application is breathtaking, considering the FISA court's national security focus. This is where the government should be the most careful and the FBI clearly isn't. And if this is where the FBI's top agents end up, you have to wonder how many errors normal, non-FISA applications contain.

There's a specific set of policies the FBI is supposed to adhere to when asking the FISA court for permission to engage in domestic surveillance. Even the most minimal conditions of the Woods Procedures aren't being followed by agents. The Procedures say the FBI must compile and retain supporting documentation to ensure FISA applications are "scrupulously accurate." We already know the applications aren't accurate. The report [PDF] points out at least one reason why:

[W]e could not review original Woods Files for 4 of the 29 selected FISA applications because the FBI has not been able to locate them and, in 3 of these instances, did not know if they ever existed…

The system appears to be broken from the ground up. The applications contain errors. The supporting information isn't accurate when it isn't missing completely. Interviews with agents and supervisors by the IG reveal this has been an ongoing problem for years now. And no one up top is doing anything to fix it.

FBI and NSD officials we interviewed indicated to us that there were no efforts by the FBI to use existing FBI and NSD oversight mechanisms to perform comprehensive, strategic assessments of the efficacy of the Woods Procedures or FISA accuracy, to include identifying the need for enhancements to training and improvements in the process, or increased accountability measures.

Every 90 days, the FBI is supposed to justify continued surveillance to the FISA Court. It did this multiple times during the Carter Page investigation, continuously omitting facts that would have resulted in its surveillance being terminated. The FBI does this in multiple cases, apparently. A mixture of malice, stupidity, and laziness has resulted in the mess observed by the Inspector General.

[B]ased on the results of our review of two renewal files, as well as our discussions with FBI agents, it appears that the FBI is not consistently re-verifying the original statements of fact within renewal applications. In one instance, we observed that errors or unsupported information in the statements of fact that we identified in the initial application had been carried over to each of the renewal applications. In other instances, we were told by the case agents who prepared the renewal applications that they only verified newly added statements of fact in renewal applications because they had already verified the original statements of fact when submitting the initial application. This practice directly contradicts FBI policy.

The FBI agrees with the IG's assessment that it's terrible at following its own policies. But the response attached to the IG report -- crafted by the Deputy FBI director -- says things will be fine because… the FBI is creating more policies!

[T]he FBI has been intensely focused on implementing these remedial measures with the goal of ensuring that our FISA authorities are exercised with objectivity and integrity. Among many other changes, we revised FISA request and verification (Woods) forms, developed a new confidential human source checklist, developed and released training on this checklist, developed and provided new training on revised FISA forms, and developed new FISA process rigor training. The revised Woods form now requires agents and supervisors to attest to their diligence in re-verifying facts from prior applications. All Woods forms, both for initial applications and renewals, must now be scanned and maintained in the electronic case file. These already-implemented changes will drive accountability, accuracy, and completeness in the FISA process.

All of this new paperwork doesn't mean anything if the FBI isn't going to make sure agents follow it. The problems seen in 2002 still exist nearly 20 years later, and that's after the implementation of additional policies following every successive reaming from the Inspector General and the FISA Court. If the FBI isn't going to start engaging in serious oversight -- including meaningful discipline of agents who fail to follow policies -- the problems will continue. The only change will be the length of oversight reports, which will contain details of all the new ways the FBI is ignoring its own protocols.

Filed Under: 4th amendment, carter page, doj, fbi, fisa, fisa court, fisa warrants, fisc, inspector general, surveillance

Senate Punts FISA Reform Bill For At Least 77 Days

from the punting-surveillance dept

Last week, we were perplexed as to why House Democrats had agreed to an extension of NSA/FBI surveillance powers for a President they keep insisting is incompetent and vindictive against anyone he dislikes. At the same time, we couldn't figure out why Republicans were so keen to support it at the same time they were insisting that those same powers were used by the "deep state" to spy on the President's own campaign. After it passed, President Trump hinted that he might veto it anyway, and now with the Covid-19 pandemic in full swing, the Senate has agreed to punt on the issue for the time being, extending the FISA authorities for 77 days, with a promise of debating real reform in the interim:

The Senate on Monday unanimously adopted a short-term extension of key federal surveillance programs that expired on Sunday night — a move that allows the chamber to more rapidly consider legislation addressing the economic impacts of the global coronavirus pandemic.

Senate Majority Leader Mitch McConnell scrapped an initial procedural vote Monday night on a House-passed bill that would reauthorize now-expired provisions of the 2015 USA Freedom Act and alter the Foreign Intelligence Surveillance Act.

Instead, McConnell and his leadership team worked out a deal with civil libertarian hard-liners who oppose that House bill, including Sens. Mike Lee (R-Utah) and Rand Paul (R-Ky.), on a 77-day extension of the surveillance powers.

Of course, we've gone through this before, with extensions being agreed to along with promises of time to debate the issues... and the debate almost never shows up. Instead, we get down to the very last minute again, and something gets shoved through. In this case, given that everyone's attention is really needed in dealing with the pandemic, this seems like a reasonable move, however. I do hope that there actually is a serious debate on the need for these FISA surveillance authorities at some point though.

Filed Under: congress, fbi, fisa, fisa court, fisa warrants, fisc, nsa, section 215, senate, surveillance

FISA Court Bans FBI Agent Who Lied To The Court About Carter Page

from the are-you-accepting-applications-for-FISA-court-moderators? dept

The FBI's inability to rein in its agents is causing it more pain. The Inspector General's report released late last year showed agents performed some very selective editing of probable cause to unlawfully prolong the FBI's surveillance of former Trump adviser, Carter Page.

Omitting evidence agents had on hand that Page was not acting on behalf of a foreign power, agents repeatedly extended FISA wiretaps, allowing FBI spooks to continue unjustified domestic surveillance. If you like your Deep State Conspiracy, you can keep it.

But the most probable motivating factor isn't FBI agents' personal dislike of Donald Trump. It's more likely their all-encompassing love of surveillance. The FBI (along with the NSA) has abused the FISA court for years, allowing both agencies to perform domestic snooping under the guise of securing the nation from foreign threats. An agency that's willing to pursue "lying to a federal agent" charges when it's unable to find anything else to go after targets with is one that's willing to engage in surveillance long after it knows continued snooping will fail to uncover evidence of criminal activity.

The FBI has already been told to revamp its warrant request procedures to ensure this abuse doesn't happen again. More significantly, the Inspector General has recommended one FBI official for prosecution after emails were altered to hide wrongdoing from the IG and (presumably) the FISA court. The FISA court went so far as to question nearly everything the FBI has brought to it, given the evidentiary cherry-picking uncovered by the IG's investigation.

In what is possibly a first in FISA court history, the court has banned certain FBI agents from submitting warrant applications to the court. Charlie Savage reports on the latest federal embarrassment.

A secretive federal court on Wednesday effectively barred F.B.I. officials involved in the wiretapping of a former Trump campaign adviser from appearing before it in other cases at least temporarily, the latest fallout from an internal inquiry into the bureau’s surveillance of the aide.

Judge James Boasberg's order [PDF] accepts the FBI's suggested FISA surveillance remedies, but goes further by offering one of the judge's own: the booting of agents shown to have lied to the court to continue surveillance of Carter Page. He also accepted a recommendation from an appointed adversarial party -- FISA expert David S. Kris -- who suggested the FBI agents who submit affidavits sign those affidavits themselves (rather than field supervisors who may have no idea about the particulars of the request). This makes those agents directly responsible for the factual content (or lack thereof) of the assertions made to request (or extend) wiretaps.

Boasberg's ban goes further than the agents implicated in the latest FBI/FISA bullshittery. Anyone else who fucks up will find themselves on Boasberg's ban list as well.

Judge Boasberg’s new order also directed that no Justice Department or F.B.I. officials “under disciplinary or criminal review relating to their work on FISA applications shall participate in drafting, verifying, reviewing or submitting such applications to the court.”

This won't completely fix the FBI's reluctance to engage honestly with courts. But it will at least head off future abuse of the FISA court for the time being. The only other thing limiting the FBI's malfeasance is Congress itself. Another renewal of surveillance powers is playing out against this backdrop, giving finger-to-the-administration's-wind politicians reasons to bypass a clean reauthorization of (abused) powers. Politically popular reforms may be on the way. While we'd rather see bipartisan recognition that we handed federal agencies way too much power after the 9/11 attacks nearly 20 years ago, we'll also take what we can get -- especially when these restrictions will roll over into the next administration.

Filed Under: 4th amendment, carter page, fbi, fisa court, fisa warrants, rubber stamp, surveillance

FBI And DOJ Personnel Confirm Agents Frequently Fudge Facts When Seeking FISA Warrants

from the respecting-the-fuck-out-of-the-rule-of-law dept

The fallout from the FBI's highly-questionable Carter Page investigation continues. The problems first came to light in an Inspector General's report which found the FBI did a lot of creative writing to continue its surveillance of Page, even after information came to light indicating the former Trump adviser was not operating on behalf of a foreign power.

The IG pointed out the FBI warrants relied on statements that were "inaccurate, incomplete, or unsupported by appropriate documentation." If the FBI did this in the Page investigation, it could easily be assumed the FBI had done it in other cases utilizing the FISA court. The protections erected to protect American citizens from surveillance by their own government were rendered useless by FBI statements the Inspector General was too kind to call lies.

The FBI has been ordered to overhaul its FISA warrant process by the FISA court. The FBI has agreed to do so, while still trying to downplay its serious violations as a long string of one-offs that apparently dates back at least 30 years. A new report from Charlie Savage and Adam Goldman for the New York Times opens with the recounting of the same sort of material omissions by the FBI during its hunt for an alleged Russian mole in the CIA. In that case, agents did the same thing, adding and subtracting evidence to continue unjustified surveillance.

This is, apparently, how the FBI performs its FISA business -- something acknowledged by the many agents and DOJ officials the reporters spoke to about the latest FBI/FISA fiasco.

The problems may be part of a broader pattern in other applications that never receive the same intense scrutiny, according to interviews with more than two dozen current and former F.B.I. agents and Justice Department officials who have worked with national security wiretaps. The system is vulnerable, they said, to lower-level agents suppressing or overlooking evidence that weakens their case when they seek permission to conduct surveillance.

The FBI is a law enforcement bureaucracy. Results are expected and no one gets participation trophies for investigations that go nowhere. To justify expenditures already on the books (and with an eye on funds not yet spoken for), agents have been adjusting narratives to ensure investigations keep running, even when the evidence appears to show there's nothing worth investigating.

The time limits on FISA warrants add to the problem.

F.B.I. agents are also racing against a clock with FISA wiretaps — good for 90 days — which can also leave them open to confirmation bias, former officials said.

Once a wiretap is in place, Justice Department lawyers charged with seeking its renewal begin nagging F.B.I. agents to identify new facts gleaned from the wiretap that could help justify continuing it. But the lawyers are less insistent on finding facts that might instead undercut their suspicion, former officials said.

These all-too-human weaknesses haven't been tempered by DOJ oversight or the FISA court. Since the court isn't adversarial, it's the FBI's word against the FISA court's judgment -- and the Court is often flying blind, cut out of the loop by national security concerns even as it attempts to regulate the business of national security.

Perhaps unsurprisingly, the FBI didn't feel its evidentiary cherry-picking was worthy of discipline. Fortunately, the Inspector General -- who has long complained about the lack of cooperation from the DOJ components he oversees -- referred one FBI official involved in the Carter Page surveillance efforts for criminal investigation.

The problems uncovered in the Page case aren't just an FBI problem. They're a law enforcement problem. Warrants are 90% boiler plate and 10% cherry picking, even during legitimate investigations. When investigations fail to uncover criminal activity, they can be artificially extended by omitting anything that might suggest the target isn't the criminal law enforcement thinks they are. Unlike other criminal cases, FISA evidence is tough to challenge. Whatever isn't obscured by parallel construction is hidden from the defendant (and possibly the judge) as being too "sensitive" to be discussed in open court.

The FBI's habit of abusing its powers isn't going to be reversed just because some of it has been made public. It takes meaningful oversight to make any changes stick. The current Inspector General takes his job seriously, but those above him in Congress often seem more concerned with political point-scoring than actually addressing the root cause of this abuse.

Filed Under: doj, fbi, fisa, fisa court, fisc, warrants

FISA Court Orders FBI To Start Cleaning Up Its Carter Page Surveillance Mess

from the fool-me-a-dozen-or-more-times,-here's-another-angry-court-order dept

The FBI's abuse of its surveillance powers in the Carter Page investigation -- uncovered by the Inspector General -- is now being addressed by the FISA court. The FISA court is often considered to be a rubber stamp for government applications -- only very rarely rejecting the government's national security advances.

Some of this is due to deference the government very definitely hasn't earned. But some of this is due to the FISA court flying blind. The government still keeps secrets from the nation's most secretive court and judges are forced to accept its assertions because they don't possess the information needed to push back against the government's claims.

The Inspector General's report highlighted more abuses by the FBI during its investigation of former Trump campaign advisor, Carter Page. The IG found the FBI had omitted info that likely would have seen its applications denied, most notably knowledge it had obtained from its sources that Carter Page most likely wasn't acting as an agent of a foreign power.

The first application made to the court in October 2016 was probably legitimate. The other two applications seeking to continue surveillance of Page weren't. Had the FBI been honest in its applications, the two extensions would likely have been rejected by the FISA court.

With this info in hand, the FISA court is moving forward with another attempt to keep the FBI from abusing its national security privileges. We'll see if it works. So far, nothing has permanently prevented any agency with access to the FISA court from abusing its surveillance powers.

The corrective actions began with a December 2019 order that demanded the FBI identify any other matters before the court that involved FBI lawyer Kevin Clinesmith. Clinesmith altered an email from another US government agency to hide the fact that Page was a government source for this agency. The FBI lawyer has since resigned and been referred to the DOJ for criminal charges.

The latest order [PDF] is another rarity for the FISA court, but sketchy times call for greater transparency. If the FBI doesn't want its dirty laundry aired publicly by the secret court, perhaps it shouldn't create so much of it. Very few orders have been released by the FISA court without a (regular) court battle, so the FISA court's proactiveness is still very much an anomaly.

The order makes more demands of the FBI. The court wants to know how the agency is going to make things right. In reference to the Carter Page surveillance applications, the court demands the FBI to explain how it's going to "sequester" everything the FBI collected on/from Carter Page using its bogus applications.

It also wants a detailed description of what the FBI/DOJ is doing to restrict access to unminimized US person info gathered during the Carter Page investigation, as well any restrictions it has placed on access/dissemination of info on Page it never should have collected, much less distributed in the first place.

The Intelligence Community's string of surveillance abuses remains unbroken. Because the FISA court is only barely adversarial, the government is able to run its bullshit pretty much uncontested. Once again, it took outside help -- namely, the Inspector General's office -- to show the court what the FBI was really doing. The only question is how often the court is willing to get burnt by its untrustworthy patrons.

Filed Under: carter page, doj, fbi, fisa, fisa court, fisc, inspector general, transparency

FISA Court Benchslaps FBI For Its Abuse Of The FISA Warrant Process During The Trump Campaign Investigation

from the FBI-finally-uses-up-all-of-its-unearned-trust dept

This didn't take long. The Inspector General's report on the FBI's Trump campaign investigation had nothing positive to say about the FBI other than it sucked at its job. Unbelievably, this was better than the IG saying the FBI performed its job in a biased fashion as part of a concerted Deep State effort to prevent Trump from taking office. (Or from staying in it, I guess, since the prevention plan obviously didn't work.)

But there was also an aspect of the FBI's investigation that should probably be chalked up to malice, rather than stupidity: the FISA warrant process. The FBI was so very determined to keep campaign advisor Carter Page under surveillance it cherry-picked statements from cooperators and buried everything that might have suggested Page was not actually involved in a Trump-Russia conspiracy.

The Inspector General said the FBI's FISA affidavit process was so full of failure, the office would be performin an audit of the FBI's FISA application processes and procedures. That's still in the works. Until then, there's the FISA court itself, which is incredibly peeved by these findings.

An order issued December 17 by FISA judge Rosemary Collyer was released publicly -- something the FISA court rarely does without allowing the IC to perform a few rounds of declassification vetting first. Charlie Savage of the New York Times was the first to report on the order [non-paywalled link here], but the order [PDF] does a pretty good job of speaking for itself.

The order opens by making it clear Judge Collyer is incredibly unhappy with the FBI's behavior, as uncovered by the IG's investigation.

This order responds to reports that personnel of the Federal Bureau of Investigation (FBI) provided false information to the National Security Division (NSD ) of the Department of Justice, and withheld material information from NSD which was detrimental to the FBI's case, in connection with four applications to the Foreign Intelligence Surveillance Court (FISC) for authority to conduct electronic surveillance of a U.S. citizen named Carter W. Page. When FBI personnel mislead NSD in the ways described above, they equally mislead the FISC.

After detailing the OIG's findings, the court delivers its message to the FBI.

The FBI's handling of the Carter Page applications, as portrayed in the OIG report, was antithetical to the heightened duty of candor described above. The frequency with which representations made by FBI personnel turned out to be unsupported or contradicted by information in their possession, and with which they withheld information detrimental to their case, calls into question whether information contained in other FBI applications is reliable.

Oof. The FISA Court just said it no longer trusts the FBI.

To earn back this trust, the court has ordered it to deliver a sworn submission that outlines the agency's efforts to ensure every application going forward will not contain material omissions or otherwise untrustworthy statements. Better, the court orders the FBI to undergo an immediate review of the December 5th order (which demanded the FBI explain the statements [or omissions] made in the Page warrant affidavits) in preparation for it to be released to the public. The last sentence of the order makes it clear any attempts to subject this soon-to-be-declassified order to further convenient omissions won't be tolerated by the Court.

In view of the information released to the public in the OIG report, the Court expects that such review will entail minimal if any redactions.

How many times must the FISA court benchslap IC members for abusing processes and powers? At least once more apparently. It's refreshing to see the FBI called out for its misconduct, but the FISA court has been soundly and serially abused for years by multiple agencies who know the real benefit of a non-adversarial system is it minimizes the number of parties capable of calling bullshit.

Filed Under: deception, fbi, fisa, fisa affidavit, fisa court, fisa warrants, fisc, lying, rosemary collyer