12. It is necessary to qualify this proposition as “ostensible,” because the question whether FISA effectively reduces the president’s constitutional authority, something Congress cannot, in principle, accomplish by statute, is unresolved. President Carter’s attorney general, Griffin Bell, strongly supported FISA, but took the position that it could not invalidate the chief executive’s power to collect foreign intelligence in the absence of judicial permission. The Clinton administration took the same position in the early 1990s, when FISA was extended to physical searches (in addition to electronic surveillance). And in litigation stemming from President Bush’s post-9/11 warrantless surveillance program, the Foreign Intelligence Court of Review (which hears rare government appeals of FISC decisions), observed, “The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.… We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.” See In re Sealed Case, U.S. Foreign Intelligence Surveillance Court of Review, No. 02-001 (Nov. 18, 2002), citing United States v. Truong Dinh Hung, 629 F. 2d 908 (4th Cir. 1980); see also, Statement of Attorney General Griffin B. Bell to the Senate Judiciary Committee on the Foreign Intelligence Surveillance Act (June 13, 1977); Testimony of Attorney General Griffin Bell before the Senate Judiciary Committee (Sept. 2, 1977), pp. 26-28 (answering questions of, and submitting a letter to, Senator Robert Morgan (D., N.C.), opining that the president retains inherent constitutional authority to engage in electronic surveillance); Byron York, “Clinton Claimed Authority to Order No-Warrant Searches” (National Review, Dec. 20, 2005).
13. See In re Sealed Case, supra.; Andrew C. McCarthy, Written Testimony before the Senate Judiciary (May 10, 2005); “FISA’s Fate Should Be the Funeral Pyre” (National Review, Aug. 7, 2007).
14. See, e.g., Andrew C. McCarthy, “The globalist legal agenda” (The New Criterion, Feb. 2016) (reviewing Justice Stephen Breyer’s The Court and the World: American Law and the New Global Realities (Knopf, 2015)).
15. Andrew C. McCarthy, “FISA Fiasco—A ‘rubber stamp’ would be an improvement” (National Review, June 26, 2013); David Kris, “How the FISA Court Really Works” (Lawfare, Sept. 2, 2018).
16. Brooke Singman, “Comey scoffs at Barr testimony, claims ‘surveillance’ is not ‘spying’” (Fox News, April 12, 2019).
17. FISA Section 702 is codified at Title 50, U.S. Code, Section 1881a.
18. See, e.g., Privacy and Civil Liberties Oversight Board, “Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act” (hereafter, “Section 702 Report” (July 2, 2014), pp. 9-10).
19. Statement for the Record of J. Michael McConnell, Director of National Intelligence, House Permanent Select Committee on Intelligence (Sept. 20, 2007), pp. 3-9; see also U.S. Department of Justice, Office of the Inspector General, “A Review of the Federal Bureau of Investigation’s Activities Under Section 702 of the Foreign Intelligence Surveillance Act Amendments Act of 2008” (September 2012), pp. ix-x (hereafter, “DOJ-IG Section 702 Report”); Charlie Savage, “F.B.I. Is Broadening Its Surveillance Role, Report Shows” (New York Times, Jan. 11, 2015).
20. We do not have a cognizable expectation of privacy in our conversations with third parties. The law, however, has long required court authorization before the government may tap a phone (or, similarly, surreptitiously monitor traffic on a person’s email account). At the end of every court-authorized electronic surveillance (e.g., wiretap) in criminal cases, furthermore, the Justice Department is supposed to provide notice to people whose communications have been intercepted—a mandate known as the “inventory notice” (which is often overlooked). See Title 18, U.S. Code, Section 2518(8)(d); see also U.S. Department of Justice, Criminal Division’s Office of Enforcement Operations (Electronic Surveillance Unit), “Electronic Surveillance Manual—Procedures and Case Law[, and] Forms” (Revised June 2005) pp. 31-32. For discussion of the applicable Fourth Amendment and privacy law principles, see, e.g., Andrew C. McCarthy, “If the Government Cannot Be Trusted, Can It Protect the Nation?” (National Review, April 15, 2017); McCarthy, “Rand Paul’s Metadata Concerns Are Misplaced” (National Review, May 28, 2015); McCarthy, “Why National-Security Republicans Lost the Patriot Act Debate” (National Review, May 23, 2015); McCarthy, “The WHY Question—Why the National-Security Right Is Gradually Losing the NSA Debate” (PJ Media, July 30, 2013); McCarthy, Rivkin, and Casey, “NSA’s Warrantless Surveillance Program: Legal, Constitutional, and Necessary,” supra.
21. DOJ-IG Section 702 Report, supra, pp. x, 2, 17; Office of the Director of National Intelligence, “Section 702 Overview” (undated); Paul Rosenzweig, “Anti-Terror Law’s Safeguards Against Incidental Collection of Domestic Data Are Sufficient” (Daily Signal, Nov. 28, 2017); Mario Loyola and Richard Epstein, “Libertarians of La Mancha” (Weekly Standard, July 8, 2013) (observing that Congress’s 2008 reform of FISA “prohibited ‘reverse targeting,’ the indirect targeting of U.S. persons’ communications via targeting the communications of known terrorists abroad.”); cf. Robyn Greene, “A History of FISA Section 702 Compliance Violations” (New America, Open Technology Institute, Sept. 28, 2017) (cataloguing hundreds of compliance violations, which are attributed not to willfulness but to the scope and complexity of Section 702 surveillance).
22. George W. Croner, “2017 FISA Reporting Season Has Ended: What Do the Numbers Mean?” (Foreign Policy Research Institute, May 15, 2018). The Office of the Director of National Intelligence provides a sample (redacted) certification on its website. See ODNI, “IC on the Record—Statement by the Office of the Director of National Intelligence and the Department of Justice on the Declassification of Documents Related to Section 702 of the Foreign Intelligence Surveillance Act,” and sample Section 702 certification. See also Charlie Savage and Scott Shane, “Secret Court Rebuked N.S.A. on Surveillance” (New York Times, Aug. 21, 2013) (noting recent FISC estimate that 250 million communications were intercepted each year) (citing U.S. Foreign Intelligence Surveillance Court, Redacted Caption, Memorandum Opinion (Oct. 3, 2011) (hereafter, “FISC 2011 Memorandum Opinion”).
23. See, e.g., Ellen Nakashima, “NSA gathered thousands of Americans’ e-mails before court ordered it to revise its tactics” (Washington Post, Aug. 21, 2013) (quoting FISC Judge John D. Bates): Because of the “sheer volume” of transactions acquired by the NSA, “any meaningful review of the entire body of the transactions” was not feasible[.]… “As a result, the court cannot know for certain the exact number” of wholly domestic communications but was reliant on the NSA’s samples of data.) (FISC 2011 Memorandum Opinion); Carol D. Leonnig, “Court: Ability to police U.S. spying program limited” (Washington Post, Aug. 15, 2013), quoting Judge Reggie B. Walton, then chief judge of the FISC: “The FISC is forced to rely upon the accuracy of the information that is provided to the Court.… The FISC does not have the capacity to investigate issues of noncompliance, and in that respect the FISC is in the same position as any other court when it comes to enforcing compliance with its orders.” With due respect to Judge Walton, the FISC is decidedly not in the same position as any other court because FISA proceedings are not normal judicial proceedings in which an adversary litigant can be relied on to ferret out government non-compliance; in FISA, the court is a participant in an executive function.
24. National Security Agency website, “NSA/CSS” (explaining the Central Security Service); see also, e.g., Mark Pomerleau, “The renewed debate over the NSA-CYBERCOM split” (Fifth Domain Cyber, March 15, 2019).
25. The term derives from longstanding procedures in criminal wiretaps, in which monitoring agents “minimize” the eavesdropping (i.e., they stop listening and turn off the recording device) once a “pattern of innocence” is detected—usually, people who use the targeted phone regularly but are clearly no
t involved in the criminal scheme (e.g., the suspect’s children).
26. Andrew C. McCarthy, “On Susan Rice, the Issue Is Abuse of Power, Not Criminality” (National Review, April 5, 2017).
27. Nakashima, “NSA gathered thousands of Americans’ e-mails before court ordered it to revise its tactics,” supra; citing FISC 2011 Memorandum Opinion, supra.
28. See, e.g., Privacy and Civil Liberties Oversight Board, “Section 702 Report,” pp. 5-8; Stephen Braun, Anne Flaherty, Jack Gillum, and Matt Apuzzo, “PRISM Is Just Part Of A Much Larger, Scarier Government Surveillance Program” (Associated Press, June 15, 2013); Paul Rosensweig, “The NSA’s phone collection order—it may be legal, but is it wise?” (Fox News, June 6, 2013).
29. At his website, Charlie Savage, a superb New York Times reporter and author of Power Wars: The Relentless Rise of Presidential Authority and Secrecy (Back Bay Books, 2015, rev’d 2017), explains that a commonly cited statistic, putting upstream collection at 9 percent of the total, is wrong. The figure is drawn from a declassified 2011 FISC opinion, and is based on mistaken assumptions of what counts as a communication—not a straightforward computation because many contacts that are vacuumed up are “multi-communications transactions” (MCTs) not discrete or single communications. Since there is no formula for how many communications are in an MCT, it cannot be said with certainty what the MCT multiplier should be. See Savage, “Don’t cite the Prism v. Upstream collection numbers from Judge Bates’ 2011 FISC opinion anymore” (CharlieSavage.com, Sept. 13, 2017).
30. For a good explanation of this process, see Charlie Savage, “Federal Court Revives Wikimedia’s Challenge to N.S.A. Surveillance” (New York Times, May 23, 2017). As I have elsewhere noted, there are profound Fourth Amendment issues, too. Even if the NSA does exactly what it is supposed to do (i.e., sift and discard), this means American communications are being seized and subjected to an inspection—however cursory—in the absence of any warrant, probable cause, or foreign-intelligence relevance. The traditional Fourth Amendment paradigm is that the government must show probable cause before searching or seizing; modern technology is challenging this paradigm on many fronts, with government seeking to seize without a particularized showing of cause, with the understanding that it will not search what it now possesses until such a showing has been made. McCarthy, “Explosive Revelation of Obama Administration Illegal Surveillance of Americans,” supra.
31. 50 U.S. Code, Section 1881a(m)(4); see also FISC 2017 Mem. and Order, pp. 16-17; DOJ-IG Section 702 Report, supra, p. 7 & n.5; Charlie Savage, “N.S.A. Said to Search Content of Messages to and From U.S” (New York Times, Aug. 8, 2013).
32. See Charlie Savage, “N.S.A. Gets More Latitude to Share Intercepted Communications” (New York Times, Jan. 12, 2017). Critics refer to the FBI’s law-enforcement access as the “backdoor search loophole.” That’s because agents are not required to seek a warrant to sift through information in the database—even though that information has been obtained without a warrant; and even though, in a normal criminal-law wiretap, agents would have to get a warrant based on probable cause that a crime has been committed before seizing and examining communications. In certain instances, FISA requires the FBI to apply for court permission to access captured communications if the Bureau is conducting a criminal investigation that does not relate to national security. 50 U.S. Code, Section 1881a(f)(2).
33. FISC 2011 Memorandum Opinion, supra; Nakashima, “NSA gathered thousands of Americans’ e-mails before court ordered it to revise its tactics,” supra.
34. Other minimization changes included the segregation of domestic communications, special handling and marking of such communications if they could not be segregated, and a reduction to two years (from five) the period of retaining upstream-collected communications. See FISC 2017 Mem. and Order, pp. 17-19; Edward C. Liu, Congressional Research Service, “Surveillance of Foreigners Outside the United States Under Section 702 of the Foreign Intelligence Surveillance Act” (April 13, 2016), pp. 4-5.
35. David E. Sanger and Thom Shanker, “N.S.A. Choice Is Navy Expert on Cyberwar” (Jan. 30, 2014).
36. DOJ-IG Section 702 Report, supra.
37. Statement of Michael E. Horowitz, Inspector General, U.S. Dept. of Justice, before the House Judiciary Committee, “Access to Justice?: Does DOJ’s Office of the Inspector General Have Access to Information Needed to Conduct Proper Oversight?” (Sept. 9, 2014).
38. U.S. Dept. of Justice, Office of Legal Counsel, Memorandum for Deputy Attorney General Sally Quillian Yates, “The Department of Justice Inspector General’s Access to Information Obtained by the Federal Wiretap Act, Rule 6(e) of the Federal Rules of Criminal Procedure, and Section 626 of the Fair Credit Reporting Act” (July 15, 2015), pp. 32-37.
39. National Security Agency/Central Security Service, Office of the Inspector General, “Report on the Special Study of NSA Controls to Comply with the FISA Amendments Act §§ 704 and 705(b) Targeting and Minimization Procedures” (Jan. 7, 2016), pp. 2, 4-7 & Table 3; see also Carlson, “The Uncovering—Mike Rogers’ investigation, Section 702 FISA Abuse & the FBI,” supra.
40. FISC 2017 Mem. and Order, supra, pp. 83-86; Carlson, “The Uncovering—Mike Rogers’ investigation, Section 702 FISA Abuse & the FBI,” supra.
41. Senate Intelligence Committee Hearing, June 7, 2017, Testimony of Admiral Michael Rogers (questions by Senator James Lankford (R., Okla.)); Carlson, “The Uncovering—Mike Rogers’ investigation, Section 702 FISA Abuse & the FBI,” supra.
42. FISC 2017 Mem. and Order, supra, pp. 81-82: Savage, “N.S.A. Said to Search Content of Messages to and From U.S,” supra.
43. There has been some speculation that Fusion GPS, generator of the Clinton campaign–sponsored Steele dossier, was among the contractors. That seems highly unlikely. As further detailed, infra, Steele did not start writing his reports until June, and the FBI does not seem to have known about them at any level until early July—months after the April 2016 discovery that contractors had received raw FISA data. Moreover, the main problem with the dossier is that it is unverified and apparently inaccurate. That is not suggestive of a process in which it was carefully checked against factual information, let alone classified FISA information. Although Glenn Simpson testified that the FBI gave Steele some information about having a source inside the Trump campaign (a claim that has not been confirmed), there has been no publicly reported testimony indicating that the FBI gave FISA information to Fusion GPS.
44. Government’s Ex Parte Submission of Reauthorization Certifications and Related Procedures, Ex Parte Submission of Amended Certifications, and Request for an Order Approving Such Certifications and Amended Certifications (Sept. 26, 2016); FISC 2017 Mem. and Order, supra, pp. 2-3 (noting supporting affidavits from directors of the NSA, FBI, CIA, and the National Counterterrorism Center, in addition to two sets of targeting procedure guidance, and four sets of minimization procedures—one for each of the four relevant agencies); see also Title 50, U.S. Code, Section 1881a(j)(1)(B) and 1881a(h)(2)(D)(i) (requiring FISC to complete review and issue order within 30 days of submission of certifications).
45. Carlson, “The Uncovering—Mike Rogers’ investigation, Section 702 FISA Abuse & the FBI,” supra; Ellen Nakashima, “Head of Justice Department’s National Security Division to step down” (Washington Post, Sept. 27, 2016); U.S. Department of Justice, U.S. Attorney’s Office, Southern District of New York, Press Release, “Evgeny Buryakov Pleads Guilty In Manhattan Federal Court In Connection With Conspiracy To Work For Russian Intelligence” (March 11, 2016).
46. FISC 2017 Mem. and Order, supra, p. 19; Eric Geller, “DOJ official leading Trump–Russia probe to step down” (Politico, April 20, 2017); Morrison & Foerster Press Release, “Top Justice Department Official John P. Carlin Joins Morrison & Foerster; Will Lead Firm’s Global Risk & Crisis Management Practice” (Jan. 10, 2017).
47. Senate Intelligence Committee Hearing, June 7, 2017, Testimony of Admiral Michael Rogers, supra; Charlie Savag
e, “N.S.A. Halts Collection of Americans’ Emails About Foreign Targets” (New York Times, April 28, 2017); Carlson, “The Uncovering—Mike Rogers’ investigation, Section 702 FISA Abuse & the FBI,” supra.
48. FISC 2017 Mem. and Order, supra, p. 19.
49. Ibid., pp. 19-20.
50. David E. Sanger, Julie Hirschfeld David, and Eric Schmitt, “Obama Is Considering Removing N.S.A. Leader” (New York Times, Nov. 19, 2016); S.A. Miller, “Donald Trump moves transition meetings to private golf club in New Jersey” (Washington Times, Nov. 17, 2016).
51. Donald J. Trump (@realDonaldTrump) tweet, March 4, 2017, 3:35 a.m.
52. House Intelligence Committee Hearing, March 20, 2017, Testimony of Admiral Michael Rogers (questioning by then–Ranking Member Adam Schiff (D., Calif.)) (“No sir, and again, my view is the same as Director Comey, I’ve seen nothing on the NSA side that we engaged in any such activity, nor that anyone ever asked us to engage in such activity”); Matthew Rosenberg, Enmarie Huetteman, and Michael S. Schmidt, “Comey Confirms F.B.I. Inquiry on Russia; Sees No Evidence of Wiretapping” (The New York Times, March 20, 2017).
53. Ellen Nakashima, “Pentagon and intelligence community chiefs have urged Obama to remove the head of NSA” (Nov. 19, 2016); Sanger et al., “Obama Is Considering Removing N.S.A. Leader,” supra; W.J. Hennigan, “Top Obama military official under fire as he meets Trump” (Los Angeles Times, Nov. 19, 2016); Shane Harris and Nancy A. Youssef, “Why Did Team Obama Try to Take Down Its NSA Chief?” (The Daily Beast, Nov. 25, 2016).
54. Olivia Gazis, “Ex-NSA chief says he never discussed collusion with Trump” (CBS News, Sept. 12, 2018). Whether Cyber Command will be split off from the NSA, which the Defense Department has favored, remains in doubt due to some congressional skepticism. See, e.g., Pomerleau, “The renewed debate over the NSA-CYBERCOM split, supra.
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