FISA / SURVEILLANCE
THE BOTTOM LINE
The Department of Justice Inspector General’s report Review of Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane Investigation underscores the need to reform the government’s secret intelligence court.
Law enforcement agencies should be required to obtain warrants before being able to search through the NSA’s records database. Absent a warrant, these searches violate the right of privacy for Americans protected by the Fourth Amendment, as well as the rights of free speech and association protected by the First Amendment. Not to mention the prevailing law of the land, decided by the 1972 Supreme Court case, United States v. United States District Court (commonly known as the “Keith” case), which holds that the executive branch has no authority to spy on U.S. citizens on U.S. soil without a warrant, even when issues of national security are at stake.
A warrant should be obtained every time a U.S. citizen is targeted and monitored, even if the U.S. citizen is deemed an "associate" of a targeted foreigner. For the same reasons as above.
The Chief Justice of the United States can continue to designate the judges, but the appointments should be subject to Senate approval. The Foreign Intelligence Surveillance Court (FISC) relies on secrecy and, given the sensitive decisions they make, we are (barely) okay with that – mainly because of the interactive way the judges interact with the government to get to the bottom of weaknesses in the applications and concerns regarding the legal requirements involved. But, let's be honest, courts that met ex parte – or where only the judge and the government are present – is not exactly the American way. Therefore, we need to put into place as many safeguards as possible to promote diversity and discourage group think and bias. The current process does not ensure against these. Currently, "the Court sits in Washington D.C. and is composed of eleven federal district court judges who are designated by the Chief Justice of the United States. Each judge serves for a maximum of seven years and their terms are staggered to ensure continuity on the Court. By statute, the judges must be drawn from at least seven of the United States judicial circuits, and three of the judges must reside within 20 miles of the District of Columbia. Judges typically sit for one week at a time, on a rotating basis." Problem here is that if you only have one person choosing every single judge, they are more likely than not to have a singular thought process. Bad idea.
The Foreign Intelligence Surveillance Act of 1978 (FISA) "sets out procedures for physical and electronic surveillance and collection of foreign intelligence information. Initially, FISA addressed only electronic surveillance but has been significantly amended to address the use of pen registers and trap and trace devices, physical searches, and business records. FISA also established the United States Foreign Intelligence Surveillance Court (FISC), a special U.S. Federal court that holds nonpublic sessions to consider issuing search warrants under FISA. Proceedings before the FISC are ex parte, meaning the government is the only party present."
After the 9/11 terrorist attacks, President George W. Bush launched an aggressive campaign to secure this nation, authorizing a number of activities that went far beyond the parameters of traditional law enforcement. To that end, Congress passed sweeping legislation designed to enhance American counterterrorism efforts. This included the USA PATRIOT Act, which significantly increased the federal government’s authority to gather, analyze and investigate private information related to U.S. citizens. Section 215 of the PATRIOT Act amended Sections 501 - 503 of the FISA and allowed the collection of "any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution." Read the entire legislation here.
After Edward Snowden's massive stolen document dump (read more here), it was discovered that Section 215 had been used as a rationale to collect Americans’ telephone records in bulk, which didn't go down well with We the People. So, in 2015, Congress passed the USA Freedom Act to end the NSA’s bulk collection program. This didn't really end bulk surveillance of Americans but replaced it with a much narrower authority, requiring that a “specific selection term” must be used to collect metadata.
Meanwhile, in 2008, another piece of aggressive legislation was passed. Section 702 of FISA removed the requirement from the original FISA that required the government to obtain a warrant from the FISA Court when seeking to wiretap communications between a foreign target and an American that was communicating from inside the United States. Section 702 also significantly broadened the parameters of targeting foreign targets, which included those not suspected of any nefarious behavior.
The problem is that, although the target must still be a non-American located overseas, Section 702 surveillance inevitably picks up the other side of the conversations as well – which is called “incidental collection.” Obviously, incidental collection may pick up the conversations from Americans who are stateside. Although Section 702 requires intelligence agencies to "minimize the retention and prohibit the dissemination of non-publicly available information concerning unconsenting United States persons," this doesn't always happen, as you can well imagine. For example, agencies are allowed to search through Section 702 data – without a warrant – for information to use against Americans in ordinary criminal cases.
That's outrageous. And unconstitutional.
Evidence:
United States. Department of Justice. Office of the Inspector General. "Review of Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane
Investigation." December 2019
United States. Department of Justice. "The Foreign Intelligence Surveillance Act of 1978." Office of Justice Programs, Bureau of Justice Assistance. 25 Apr
2019
United States. Congress. "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT
ACT) Act of 2001." H.R.3162. 107th Congress. 26 Oct 2001
United States. Congress. "USA FREEDOM Act of 2015." H.R.2048. 114th Congress. 2 June 2015
National Counterterrorism Center. "NCTC Foreign Intelligence Surveillance Act Section 702." 2017
United States. Foreign Intelligence Surveillance Court. "About the Foreign Intelligence Surveillance Court." 26 Apr 2019