It was secret, and now it’s public.
In December, the secret Foreign Intelligence Surveillance Court issued an 83-page ruling that said the FBI improperly snooped on nearly 16,000 Americans by searching a database of electronic communications that the government collected without a warrant.
The ruling was declassified and made public on Friday.
The court said the FBI committed “widespread violations” of privacy protections that are supposed to prevent government agents from looking through information they have no court authorization to see.
The FBI disagreed, arguing that its queries on all 16,000 people were “reasonably likely to return foreign-intelligence information or evidence of a crime.”
The court said this position was “unsupportable,” except in the cases of seven individuals.
For all the rest, the FBI had no legal authority to search through the emails or phone records or anything else that was scooped up in the warrantless surveillance programs.
The formerly secret surveillance and a now-defunct bulk data collection program were first authorized by an executive action of President George W. Bush after the September 11, 2001, terrorist attacks. Since 2008, the warrantless wiretapping has been authorized by Section 702 of the FISA Amendments Act. The law lets the government collect emails and phone calls of noncitizens overseas. The trouble comes in when they are communicating with Americans.
“The Court has previously assessed that requiring FBI personnel to document why a query involving a U.S.-person query term is reasonably likely to have returned foreign-intelligence information or evidence of crime before examining contents returned by the query,” the court wrote, should help “motivate FBI personnel to carefully consider” whether a query “satisfies” the standard.
But it appears that the requirements were ignored. The FBI queried the database to vet sources, check up on individuals who applied for jobs as police officers, and learn more about a planned visit by foreign officials.
Possibly this is one reason for last week’s decision by Attorney General William Barr to replace the head of the Justice Department’s national security Office of Law and Policy, Brad Wiegmann. This decision was “very alarming,” according to Katrina Mulligan, a former Obama administration official who worked in that office.
Here’s something more alarming: one responsibility of the Office of Law and Policy is oversight of the FBI’s intelligence-gathering activities. If Wiegmann wasn’t making sure FBI agents limited their queries of warrantless-surveillance data related to Americans, what else did he fail to oversee?
There have been a few “highly contentious matters” involving the FBI’s decision to investigate the Trump administration, for example.
The FISA court approved the government’s submission of “reauthorization certificates and related procedures,” a now-annual requirement for the continuation of the program. Some of the procedures have been changed this year. The National Security Agency and the Central Intelligence Agency must provide certain “target-identifying information to the FBI.”
There are also new procedures “regarding user-activity monitoring activities by the FBI, CIA and NSA.” The court said the procedures “as written” satisfy the requirements of the law and the Constitution.
The general idea is to mask the identity of Americans whose conversations and communications are caught in the net of foreign intelligence surveillance, and the procedures are supposed to ensure that the data collected is not used for general snooping
“As written,” the procedures should prevent that.
The problem with warrantless surveillance and data collection is that secrecy hides abuses. There’s supposed to be oversight by the FISA court and by officials in the Justice Department. However, the FBI misled the FISA court and the official in charge of oversight has now been replaced.
If not for the many investigations into the FBI’s intelligence-gathering activities, which were prompted by the Bureau’s decision to investigate the Trump campaign in the summer before the 2016 election, we would never know about the routine, careless disregard of the Fourth Amendment’s guarantee against unreasonable searches.
If you had qualms about the government’s post-9/11 decision to keep us safe by collecting our electronic communications without a warrant, you had good reason for them.
(Susan Shelley is an editorial writer and columnist for the Southern California News Group.)