FISA: Time to Reform or Time to Go?

Unless you live in a barrel, you have heard in numerous conversations the word “FISA.” “FISA” actually stands for “Foreign Intelligence Surveillance Act.” FISA legislation regulates the United States Government’s ability to surveil (or “spy”) American citizens who may be communicating with people outside the U.S. Such surveillance is governed by a special court called “FISC,” or “Foreign Intelligence Surveillance Court.” Why would this ever be necessary?

The United States Foreign Intelligence Surveillance Court (FISC, also called the FISA Court) is a U.S. federal court established and authorized under the Foreign Intelligence Surveillance Act of 1978 (FISA) to oversee requests for surveillance warrants against foreign spies inside the United States by federal law enforcement and intelligence agencies. Such requests are made most often by the National Security Agency (NSA) and the Federal Bureau of Investigation (FBI).

In 2013, a top-secret order issued by the court, which was later leaked to the media from documents culled by Edward Snowden, required a subsidiary of Verizon to provide a daily, on-going feed of all call detail records—including those for domestic calls—to the NSA. The Edward Snowden matter brought the FISA process to light and thrust it into the forefront of intelligence agencies’ process operations. This was the first time average Americans knew anything about this process.

How Does FISA Work?

Each application for one of these surveillance warrants (called a FISA warrant) is given to an individual judge of the court. The court may allow third parties to submit briefs. When the U.S. Attorney General determines that an emergency exists, the Attorney General may authorize the emergency employment of electronic surveillance before obtaining the necessary authorization from the FISC, if the Attorney General or their designee notifies a judge of the court at the time of approval and applies for a warrant as soon as practicable but not more than seven days after approval of such surveillance, as required by 50 U.S.C. § 1805.

If one judge of the court denies an application, the federal government is not allowed to make the same application to a different judge of the court but may appeal to the United States Foreign Intelligence Surveillance Court of Review. Such appeals are rare: the first appeal from the FISC to the Court of Review was occurred in 2002 (In re-Sealed Case No. 02-001), 24 years after the founding of the court.

Also rare is for FISA warrant requests to be turned down. During the 25 years from 1979 to 2004, 18,742 warrants were granted, while only four were rejected. (this is important and will be discussed later) Fewer than 200 requests were modified before being accepted, almost all of them in 2003 and 2004. The four rejected applications were all from 2003, and all four were granted in part after being submitted for reconsideration by the government. Of the applications that had to be modified, few were before the year 2000. During the next eight years, from 2004 to 2012, there were over 15,100 additional warrants granted, and another seven were rejected. Over the entire 33-year period, the FISA court issued 33,942 warrants, with only 12 denials – a rejection rate of 0.03 percent of the total requests. This total does not include the number of warrants that were modified by the FISA court.

FISA Corruption

It’s easy to see how the FISA process could easily be corrupted for partisan and covert purposes. The fact that FISA corruption is so easy to implement has given pause to numerous of those on Capitol Hill, who are both concerned with the obvious actual and attempted electronic intrusions into multiple U.S. companies and even the government itself. The most recent of such alleged FISA abuse occurred during the FBI Trump Campaign investigation. It allegedly began with a FISA warrant submitted to the FISC for authorization to surveil the communications of Carter Page, who was an associate of the Trump Campaign. Uproar ensued about alleged “wiretapping” of then Candidate Donald Trump shortly after a visit to Trump Tower by former NSA head Mike Rodgers. Speculation is that Rodgers, in that meeting, informed Mr. Trump that his campaign headquarters at Trump Tower was electronically surveilled. The next day, the Trump Campaign moved its headquarters to New Jersey.

NOTE: unless and until President releases to the American public the FISA warrant applications filed by the FBI to obtain FISA warrants, we will not know the specifics of the basis for that surveillance. It is expected for those to be released at any time

It is uncanny how partisan are the comments and analyses of the findings of DOJ Inspector General Michael Horowitz as published in his 500+ page report a few days ago into FISA abuse alleged to have occurred during the Trump Campaign investigation. It depends on whom you speak or listen as to whether the Horowitz findings vilified the FISA process during the FBI investigation or supported it. Shortly after its release, Senator John Kennedy of Louisiana made this request of the President:

“The Inspector General report showed the FBI was willing to do anything in order to spy on Carter Page, including making 17 significant inaccuracies and omissions. The American public deserves to know everything the FBI did,” Kennedy said in a statement. I’m asking President Trump to declassify the entire record so that Attorney General Barr and FBI Director Wray can release it to the American people. If the FBI wants to continue the employment of rogue, politically-motivated agents, then let the public read the entire record.”

As does Senator Kennedy, numerous Americans both inside and outside of Washington feel the structure of the Court gives the government an “open season” on surveillance of Americans — ALL Americans — that apparently have and could going forward be for partisan and political purposes. Remember this: only twelve of 33,942 FISA warrants filed in its history did the FISA Court deny.

Fix FISA or Dump FISA

The House recently voted against an amendment to the Foreign Intelligence Surveillance Act (FISA) Section 702, proposed by Reps. Justin Amash of Michigan and  Zoe Lofgren of California. FISA Section 702, which was inserted as an addition to the 1978 FISA Act in 2008, was intended to be used solely to monitor communications by foreign nationals outside of the United States.

In recent years, Edward Snowden’s revelations showed that Section 702 provided the government with a legal cover to collect data on communications between millions of U.S. citizens without warrants or probable cause. According to a National Security Agency (NSA) transparency report from April 2019, in 2018, communications by U.S. citizens or residents were queried 9,637 times, over 2,000 more queries than the previous year.

The Amash-Lofgren Amendment would have withheld funding for Section 702 in the budget for the fiscal year 2020. If it had passed, any requests for Section 702 funding by governmental bodies such as the NSA would have had to make an express commitment to not use those funds on the warrantless collection of U.S. citizens’ data.

Forty-seven organizations, including the ACLU, the Electronic Frontier Foundation, and FreedomWorks, urged Congress in a June letter to pass the amendment to “significantly advance the privacy rights of people within the United States.” Two Republican representatives, Chip Roy of Texas and Jim Jordan of Ohio, rose to defend the amendment during the ten minutes of debate that was afforded. Despite these endorsements, the change was struck down 252-175, with over 100 members of each party voting against it.

Unfortunately, as ordinary American citizens, we find ourselves in something of a conundrum. It’s hard for us to say, “Yes, we support FISA and want it to continue,” or “No, we think the Government with FISA has too many unchecked opportunities to abuse the FISA system, so we want it abolished.”

Summary

Here’s what a legal writer Mark Wauck stated about whether we should keep or abolish the FISA process:

“It seems to me that since Watergate our politics have been almost totally transformed, with the Left feeling ascendant, despite occasional setbacks. At the same time that the Left has taken over education and most other public institutions, the Intelligence agencies–and of course the FBI in particular–have assumed a huge role in domestic intelligence. It’s true that this is partly the result of the GWOT (“Global War on Terrorism”) and FISA’s application to it, but I believe it was happening anyway.

The current abuses that we’re seeing coming to light attributable to the Obama Administration, are very scary. However, given that the Left feels no constraints about our traditional liberties, is it possible that FISA actually gives them a bit of pause, slows them down a bit just to hide what they’re doing? If they were to have 8 years with no constraints, with the total and enthusiastic cooperation of Big Data companies, what might the result be?

This is what worries me. Would the abolition of what is undoubtedly unconstitutional lead to Big Brother?”

Kentucky Republican Senator Rand Paul — a Libertarian at heart — has long questioned the validity of the FISA system in regards to the Constitutional protection of the rights of Americans. According to the Senator, the process in its purest forms should work correctly. But there is a problem: people with partisan opinions and perspectives of its purposes:

Should we fix the process hoping for good results? Or should we simply ax it to once again rely on a prosecutor presenting evidence to a judge sufficient to justify a surveillance warrant?

There is far too much corruption at the DOJ and FBI that has been exposed in the last few years for me to feel comfortable recommending continuation of the FISA process. Too many people in powerful positions that impact FISA investigations have been shown to be grossly politically biased. Unless and until the Intelligence agencies have demonstrated their commitment to strict adherence to not just the letter of FISA warrant applicant and subsequent warrants, but to the FISA process, I recommend that FISA be ditched and we return to the 250-year-old process to obtain warrants: convince a judge with facts of any case when presenting a sworn warrant application for a surveillance warrant. If facts in evidence justify such a warrant, that judge can issue it.

If there’s “meat on the bone,” justice will be served. And the personal lives of Americans will once again be protected from Big Brother or surveillance abuse who once gains power seldom every relinquishes it.

NEWS BULLETIN!!!!!!

In a rare public order Tuesday, the chief judge of the Foreign Intelligence Surveillance Court [FISC] strongly criticized the FBI over its surveillance-application process, giving the bureau until Jan. 10 to come up with solutions, in the wake of findings from Justice Department Inspector General Michael E. Horowitz.

The order, from the court’s presiding judge Rosemary M. Collyer, came just a week after the release of Horowitz’s withering report about the wiretapping of Carter Page, a former campaign adviser to President Trump.

“The FBI’s handling of the Carter Page applications, as portrayed in the [Office of Inspector General] report, was antithetical to the heightened duty of candor described above,” Collyer wrote in her four-page order. “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.”

“As [FBI Director Christopher Wray] has stated, the inspector general’s report describes conduct by certain FBI employees that is unacceptable and unrepresentative of the FBI as an institution,” the bureau responded in a statement Tuesday night. “The director has ordered more than 40 corrective steps to address the report’s recommendations, including some improvements beyond those recommended by the IG.”

Horowitz said he did not find significant evidence that FBI agents were involved in a political conspiracy to undermine Trump’s candidacy in 2016. However, the report did find numerous errors and inaccuracies used by FBI agents to obtain permission to monitor Page’s phone calls and emails.

While Collyer’s order did not specify exactly what reforms the FBI needed to implement to its policies for obtaining permission to wiretap people under the Foreign Intelligence Surveillance Act, or FISA, the order did say that the FISA court will weigh in on whether the reforms are deemed sufficient.

“The [FISA court] expects the government to provide complete and accurate information in every filing with the court,” Collyer wrote. “Without it, the [FISA court] cannot properly ensure that the government conducts electronic surveillance for foreign intelligence purposes only when there is a sufficient factual basis.” (FOX News)

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