Skewed intelligence, abuse of process, pretextual use of intrusive investigative tactics, all in the service of politically-driven narratives. This is not something the Obama administration came up with just in time for the 2016 campaign. By then, this was old hat.
CHAPTER FIVE
‘An Institutional Lack of Candor’
At a Senate Intelligence Committee hearing on March 12, 2013, President Obama’s Director of National Intelligence, James Clapper, gave false testimony. Asked whether the National Security Agency, the intelligence community’s cryptology and signals intelligence powerhouse, “collect[s] any type of data on millions or hundreds of millions of Americans,” he answered “Not wittingly.”1 The testimony seemed shifty at the time. It became indefensible when former NSA contractor Edward Snowden leaked thousands of documents, including some showing that the NSA was bulk-collecting the domestic phone records of millions of Americans—“metadata” about to and from whom calls were made, the time and duration, though not the actual content of the communications. But the agency was hoovering up content, too, in the form of millions of communications snatched from the internet’s sinews.2
Clapper, the Obama administration’s top intelligence official, could not keep straight why he lied to Congress. Sometimes, he claimed that the NSA’s surveillance activities had just slipped his mind—i.e., the director of the nation’s $50 billion per annum intelligence dynamo had forgotten about the decade’s hottest of hot-button intelligence issues. Other times, he suggested that he hadn’t understood the question—i.e., a seasoned military and intelligence professional who had testified in front of Congress numerous times forgot that he could have asked for clarification. And at least once he rationalized that he fully understood the question but was trying to give the “least untruthful” answer possible in a public setting—i.e., the keeper of the nation’s defense secrets forgot the shopworn routine in which intelligence officials ask to move proceedings into closed session when a congressional committee’s questions call for classified answers. Eventually, Clapper apologized. This was business as usual for a Washington fixture, not the Trump–Russia investigation, so the Justice Department declined to file perjury charges.3
Alas, the Snowden leaks did not convey the full depths of government deceit.
At a secret hearing on October 26, 2016, the Foreign Intelligence Surveillance Court expressed stunned disbelief at what it described as the institutional “lack of candor” of the intelligence community.4 The FISC had just been advised that the spy agencies had been illegally monitoring the communications of Americans for years. The surveillance—spying in common parlance—was in blatant violation of protocols, known as “minimization procedures,” that had the force of law—ordered by the FISC as mandated by Congress in the Foreign Intelligence Surveillance Act (FISA).5 Top intelligence officials had been well aware of the illegality but withheld the information from the FISC. That, too, flagrantly violated FISA rules, which require the Justice Department to inform the court “immediately” upon discovering that it has made any misstatement to the tribunal, or that the government has flouted the court’s authorization orders.6
This is another Obama scandal that the mainstream media has refused to cover. Nevertheless, excellent reporting has been done elsewhere, especially by Jeff Carlson of the Epoch Times.7 It is a mindboggling story. Many salient details are still under the cloak of top-secret classification. As this book goes to print, it would be rash to draw final conclusions about this episode’s connection to Obama administration spying on the Trump campaign. Yet, it demonstrates beyond cavil that the administration made a habit of illegal surveillance and deception of the FISC.
The scandal, moreover, centrally involves spying on American citizens, through what’s known as “incidental” surveillance—the indirect receipt of information about people who are not the specific target of an intelligence-gathering operation, including the collection of their communications. There is no doubt that incidental surveillance was key to the monitoring of Trump campaign surrogates. That resulted in their inclusion in intelligence reports, which led to their identities being revealed (“unmasked”), in further violation of court minimization rules, which, in turn, abetted media leaks that fueled the Trump–Russia narrative.
FISA Philosophy
A little background on surveillance. Non-Americans situated outside our country do not have Fourth Amendment privacy protections. Consequently, the overseas collection of intelligence about them, including their communications, occurs with no judicial supervision. It is carried out under Executive Order 12333, which has been amended several times since being issued by President Ronald Reagan in 1981.8
Other foreign intelligence collection implicates the Foreign Intelligence Surveillance Act. At its inception over forty years ago, FISA was chiefly designed to shield Americans inside the United States from such surveillance unless a court could be shown probable cause to believe they were complicit in clandestine activities on behalf of a foreign power. With congressional expansion of FISA over the last decade, the law is now also geared to mitigate the invasive consequences of sweeping global surveillance, made possible by the revolution in telecommunications technology. This latter protection is not very effective. In part, this is because the underlying concept is dubious, namely, the notion that people who interact with foreigners who are outside U.S. jurisdiction have a reasonable expectation of privacy despite being well-aware that the latter could be under surveillance—whether by U.S. or other intelligence services. There is also the problem that technological capabilities are advancing more rapidly than government’s capacity to apply privacy principles rooted in the Constitution and other federal law, in particular, the tenet that there must be grounds for suspicion before communications are seized and searched).
Prior to 1978, foreign intelligence collection was strictly a political responsibility: part of the national security duties the Constitution assigns to the political branches, with the executive carrying it out, subject to congressional oversight. It was not a judicial process. In the realm of foreign threats to American interests and security, the judiciary—the non-political branch—had neither constitutional responsibility nor institutional competence.
I continue to believe this was the right way to look at the matter, and have thus always been a FISA naysayer.9 The best articulation of this position was posited by the legendary Robert Jackson—an icon in both the political and legal arenas, who served as FDR’s attorney general, Truman’s chief prosecutor at Nuremburg, and a justice of the Supreme Court. Writing for the Court thirty years before FISA’s enactment, Jackson opined:
The President, both as Commander-in-Chief and as the Nation’s organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.10
But then came the Vietnam era political spying scandals and the Watergate abuses of intelligence authority. There followed an outcry for curbs on executive surveillance powers even in the realm of foreign intelligence. As usual, the Washington cure was worse than the disease: the insertion of judicial oversight, notwithstanding the issues of institutional com
petence and political accountability outlined by Justice Jackson.
This prescription, FISA, had been adumbrated by the Supreme Court’s 1972 decision in what’s known as the Keith case. The justices invalidated a warrantless search carried out by the executive branch for purely domestic national security purposes—targeting three domestic terrorists who were plotting to bomb government facilities. Of course, internal threats to security—in America, by Americans—are entangled with dissent against government policy; they thus implicate fundamental liberties vouchsafed by the Constitution. That makes them saliently different from threats by foreign powers—even if those foreign powers are acting through agents situated inside the United States. The Keith Court recognized this distinction. So had Congress a few years earlier, when lawmakers enacted the statute that governs electronic surveillance in the context of domestic criminal investigations.11 Nevertheless, in the post-Watergate fervor against executive power, over both proven and hypothetical abuses, a heavily Democratic Congress enacted FISA in 1978. President Jimmy Carter signed it, even though it ostensibly transferred to the judiciary significant executive authority over the monitoring of foreign threats to national security.12
FISA has now been the law for over forty years. It is not just a bad idea in theory; it’s a bad one in practice: in the post-9/11 years, for example, the FISC went rogue, attempting—until beaten back by FISA’s appellate court—to re-erect the infamous Justice Department regulatory “wall” that impeded cooperation between intelligence and law-enforcement agents.13 Nevertheless, the law is not going away; it is expanding: the judiciary is now ensconced in national security matters.14 Still, to my mind, this well-meaning arrangement is counterproductive. It undermines accountability: dragging the judiciary into non-judicial matters (the execution of security policy), giving executive excesses the veneer of judicial approval, and making the abuse of surveillance authority more likely, not less.
If the executive’s national security agents represent that they believe a foreign power is threatening the United States through the activities of a clandestine agent, it is only natural that a judge would be disposed to grant surveillance authority. Again, national security is principally an executive function: the courts are not responsible for it, have no expertise in it, and do not answer to the people whose lives are at stake. Would you want to be the judge who tells the FBI and the Justice Department that they lack sufficient evidence to monitor a suspected terrorist mass-murder plot? That they may not monitor a Russian cabal suspected on thin proof of undermining American elections? Of course not. It is no surprise, then, that the FISC approves government surveillance applications at an extraordinarily high rate. That does not make the FISC a rubber stamp, as ill-informed critiques deduce.15 The approval rate should be very high. The court is reviewing assessments by professional intelligence analysts working for the president elected by the People to protect the nation.
Executive officials know, then, that it is highly likely the FISC will approve its applications. They also know that, unlike in criminal cases, there is never going to be a public proceeding at which their work and their representations to judges are going to be checked—counterintelligence is top secret. Naturally, this creates the temptation to present applications that are weak or even disingenuous. In the unlikely event a judge does not approve a deficient application, it is no big deal because the surveillance would not have happened anyway. But if a court does authorize surveillance, no one will ever know; and if the surveillance somehow becomes public, the agents can claim that it was legitimate because a judge approved it—even if the agents did a shoddy job or otherwise failed to comply with their own procedures. Recall, for example, former FBI director James Comey’s amusingly circular claim that the FBI does not engage in anything as underhanded as “spying” because its “electronic surveillance” is “court ordered.”16
I believe we would get more diligent performance out of the executive branch if officials were held responsible for their own investigative judgments, subject to aggressive oversight by Congress. The participation of the court allows executive officials to evade accountability—as we shall see, this is what has happened with the Carter Page FISA warrants.
To be sure, mine is a minority view. Most intelligence officials and FISC judges would tell you that the FISA system is a worthy innovation that has encouraged executive intelligence officials to be more solicitous of American privacy rights. Of course, no one, myself least of all, is saying the Justice Department, FBI, and other intelligence agencies should have no one checking their work. Quite the opposite. The question is who should check their work, and the answer is Congress—the branch politically accountable to the self-governing people who must balance their interests in security and privacy. Note that the same FBI that told the FISA court about its Trump–Russia investigation took pains to conceal the probe’s existence from the congressional Gang of Eight—which would likely have been much quicker to spot and object to political spying, and to ask hard questions about the flimsiness of the stated probable cause.
It is, nevertheless, a fair counter to say that Congress’s dysfunction—its oversight muscles atrophied from decades of delegating its functions to courts and the administrative state—renders it, practically speaking, an impotent check on the executive. While lawmakers should be doing the job, courts are at least trying to do it and, many would argue, are doing it better than Congress would. Count me skeptical nonetheless. In the episode we are about to study, judicial oversight—along with conscientious fretting about it by some intelligence officials—brought Obama administration abuses to light … but it first allowed the abuses to go on for years.
Section 702
For our purposes, there are two relevant forms of FISA surveillance. More familiar is the individualized FISA warrant. It permits the FBI to monitor the communications of a specific person inside the United States. To get a warrant, the government must convince the FISC that the person is acting as a clandestine agent of a foreign power. We will discuss this category in more depth when we reach the FISA warrants issued for former Trump campaign adviser Carter Page.
The second form is governed by FISA Section 702.17 This is a critical provision of the FISA Amendments Act signed by President George W. Bush in 2008, following a vigorous national debate over (a) post-9/11 security needs, (b) the controversy over Bush’s warrantless surveillance program, and (c) the need to grapple with the fact that the technological landscape that informed FISA’s enactment in 1978 had largely been rendered obsolete by the telecom revolution.
Like operations under the aforementioned Executive Order 12333, Section 702 involves collection of intelligence about foreigners outside the United States, particularly their communications. Such communications used to be of no concern to U.S. courts. But modern telecom networks commonly break communications into digital “packets” that zoom through American networks even if the participants are outside the United States. This is a boon to our intelligence agencies.18 But it also created an anomaly: bringing within the jurisdiction of the courts foreign communications that were explicitly intended to be excluded from FISA regulation19—an anomaly pounced on by libertarians concerned about government spying on Americans, and transnational progressives who want to extend American legal rights to non-Americans. They successfully pressured for the formal expansion of FISA judicial supervision over surveillance of foreign communications. The rationale was that (a) these communications are physically passing through our territory (i.e., into the jurisdiction of U.S. courts); (b) the foreigners targeted for surveillance may be contacting Americans inside the United States; and (c) some American communications are unavoidably captured by the NSA’s sometimes indiscriminate interception and storage of communications.
This unavoidable capture, what we’ve referred to as “incidental collection,” is inevitable in all electronic eavesdropping—whether in counterintelligence or ordinary criminal wiretaps, whether the surveillance is done by court-war
rant or other lawful methods. If a mafia hitman whose phone is being tapped decides to order lunch, the local trattoria owner who answers the call will also be monitored. This unremarkable fact does not raise serious Fourth Amendment concerns.20
Nevertheless, FISA surveillance for foreign counterintelligence purposes is more controversial than wiretaps in criminal investigations. The government does not have to show probable cause of a crime. Furthermore, when targeting foreigners overseas, the government need not clear any proof hurdle; it must simply represent that it has a legitimate foreign-intelligence purpose.
The national security imperative to conduct surveillance against foreign threats, coupled with the low bar for its authorization, necessarily means Americans will be incidentally monitored. This is an acute concern: it is simply human nature that power is prone to abuse when its exercise is shrouded in secrecy, as it is in counterintelligence. Once we understand the rules and how the system works, it takes little imagination to realize how surveillance powers could be diverted to monitor Americans without warrants. A rogue government seeking to spy on Americans who have academic, business, or political needs to deal with foreigners (an ever-increasing number of Americans in an ever-smaller world) could just pretextually invoke these broad powers to collect intelligence about these foreigners. This would inexorably result in the monitoring of the Americans with whom the foreigners interact. Section 702 prohibits such intentional “incidental” surveillance (to coin an oxymoronic phrase), which civil libertarians call “reverse targeting.” Such parchment prohibitions, however, are difficult to enforce when violations are kept secret from those who’ve been victimized.21
An important purpose of Section 702, then, is to provide some privacy protection—some judicial review—for Americans who are or could be subjected to incidental surveillance. Under 702, the government provides the court with certifications by the director of national intelligence and the attorney general, based on representations made by the directors of the FBI and CIA (our chief domestic and foreign intelligence services, respectively), authorizing the intelligence community to target various foreigners. These foreigners must be reasonably believed to be situated outside the United States, and their targeting must be for foreign intelligence purposes. There are several categories of foreign intelligence purposes pertinent to U.S. security interests, so the government submits several certifications to the FISC; the exact number is classified, although the government estimates that these certifications resulted in 129,080 surveillance targets in 2017. (The number climbed steadily in recent years, up nearly 40 percent since 2013.) This translates into tens of millions of communications intercepted annually.22
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