FISA and the Still Too Secret Police
On Monday, the Washington Post reported that the FBI continues to commit uncounted violations of the Foreign Intelligence Surveillance Act of 1978 (FISA). If you sought to report a crime to the FBI, an FBI agent may have illegally surveilled your email. Even if you merely volunteered for the FBI “Citizens Academy” program, the FBI may have illegally tracked all your online activity.
But the latest FBI offenses, like almost all prior FBI violations, are not a real problem, according to James Boasberg, presiding judge of the U.S. Foreign Intelligence Surveillance Court. That court, among other purposes, is supposed to safeguard Americans’ constitutional right to privacy under FISA. FISA was originally enacted to create a narrow niche for foreign intelligence investigations that could be conducted without a warrant from a regular federal court. But as time passed, FISA morphed into an uncontrolled yet officially sanctioned privacy-trampling monster. FISA judges unleash the nuclear bomb of searches, authorizing the FBI “to conduct, simultaneous telephone, microphone, cell phone, e-mail and computer surveillance of the U.S. person target’s home, workplace and vehicles,” as well as “physical searches of the target’s residence, office, vehicles, computer, safe deposit box and U.S. mails.”
In 2008, after the George W. Bush administration’s pervasive illegal warrantless wiretaps were exposed, Congress responded by enacting FISA amendments that formally entitled the National Security Agency to vacuum up mass amounts of emails and other communication, a swath of which is provided to the FBI. In 2018, the FISA court slammed the FBI for abusing that database with warrantless searches that violated Americans’ rights. In lieu of obeying FISA, the FBI created a new Office of Internal Audit. Deja vu! Back in 2007, FBI agents were caught massively violating the Patriot Act by using National Security Letters to conduct thousands of illegal searches on Americans’ personal data. Sen. Richard Durbin (D-Ill.) declared that an Inspector General report on the abusive searches “confirms the American people’s worst fears about the Patriot Act.” FBI chief Robert Mueller responded by creating a new Office of Integrity and Compliance as “another important step toward ensuring we fulfill our mission with an unswerving commitment to the rule of law.” Be still my beating heart!
The FBI’s promise to repent after the 2018 report sufficed for the FISA court to permit the FBI to continue plowing through the personal data it received from NSA. Monday’s disclosure—a delayed release of a report by the court last November—revealed that the FBI has conducted warrantless searches of the data trove for “domestic terrorism,” “public corruption and bribery,” “health care fraud,” and other targets—including people who notified the FBI of crimes and even repairmen entering FBI offices. As Spencer Ackerman wrote in the Daily Beast, “The FBI continues to perform warrantless searches through the NSA’s most sensitive databases for routine criminal investigations.” That type of search “potentially jeopardizes an accused person’s ability to have a fair trial since warrantlessly acquired information is supposed to be inadmissible. The FBI claimed to the court that none of the warrantlessly queried material ‘was used in a criminal or civil proceeding,’ but such usage at trial has happened before,” Ackerman noted. Some illicit FBI searches involve vast dragnets. As the New York Times reported, an FBI agent in 2019 conducted a database search “using the identifiers of about 16,000 people, even though only seven of them had connections to an investigation.”
In the report released Monday, Judge Boasberg lamented “apparent widespread violations” of the legal restrictions for FBI searches. Regardless, Boasberg kept the illicit search party going: “The Court is willing to again conclude that the . . . [FBI’s] procedures meet statutory and Fourth Amendment requirements.” “Willing to again conclude” sounds better than “close enough for constitutional.”
At this point, Americans know only the abuses that the FBI chose to disclose to FISA judges. We have no idea how many other perhaps worse abuses may have occurred. For a hundred years, the FBI has buttressed its power by keeping a lid on its crimes. Unfortunately, the FISA Court has become nothing but Deep State window dressing—a facade giving the illusion that government is under the law. Consider Boasberg’s recent ruling in the most brazen FISA abuse yet exposed. In December 2019, the Justice Department Inspector General reported that the FBI made “fundamental errors” and persistently deceived the FISA court to authorize surveilling a 2016 Trump presidential campaign official. The I.G. report said the FBI “drew almost entirely” from the Steele dossier to prove a “well-developed conspiracy” between Russians and the Trump campaign even though it was “unable to corroborate any of the specific substantive allegations against Carter Page” in that dossier, which was later debunked.
A former FBI assistant general counsel, Kevin Clinesmith, admitted to falsifying key evidence to secure the FISA warrant to spy on the Trump campaign. As a Wall Street Journal editorial noted, Clinesmith “changed an email confirming Mr. Page had been a CIA source to one that said the exact opposite, explicitly adding the words ‘not a source’ before he forwarded it.” A federal prosecutor declared that the “resulting harm is immeasurable” from Clinesmith’s action. But at the sentencing hearing, Boasberg gushed with sympathy, noting that Clinesmith “went from being an obscure government lawyer to standing in the eye of a media hurricane… Mr. Clinesmith has lost his job in government service—what has given his life much of its meaning.” Scorning the federal prosecutor’s recommendation for jail time, Boasberg gave Clinesmith a wrist slap—400 hours of community service and 12 months of probation.
The FBI FISA frauds profoundly disrupted American politics for years and the din of belatedly debunked accusations of Trump colluding with Russia swayed plenty of votes in the 2018 midterms and the 2020 presidential election. But for the chief FISA judge, nothing matters except the plight of an FBI employee who lost his job after gross misconduct. This is the stark baseline Americans should remember when politicians, political appointees, and judges promise to protect them from future FBI abuses. The FISA court has been craven, almost beyond ridicule, perennially. Perhaps Boasberg was simply codifying a prerogative the FISA court previously awarded upon FBI officials. In 2005, after a deluge of false FBI claims in FISA warrants, FISA Presiding Judge Colleen Kollar-Kotelly proposed requiring FBI agents to swear to the accuracy of the information they presented. That never happened because it could have “slowed such investigations drastically,” the Washington Post reported. So, FBI agents continue to lie with impunity to the judges.
The FISA court has gone from pretending that FBI violations don’t occur to pretending that violations don’t matter. Practically the only remaining task is for the FISA court to cease pretending Americans have any constitutional right to privacy. But if a sweeping new domestic terrorism law is passed, perhaps even that formal acknowledgement will be unnecessary. Beginning in 2006, the court rubber-stamped FBI requests that bizarrely claimed that the telephone records of all Americans were “relevant” to a terrorism investigation under the Patriot Act, thereby enabling NSA data seizures later denounced by a federal judge as “almost Orwellian.” FISA could become a peril to far more Americans if Congress formally creates a new domestic terrorism offense and a new category for expanding FISA searches.
The backlash from Democrats after the January 6 clash at the Capitol showcased the demand for federal crackdowns on extremists who doubted Biden’s election, disparaged federal prerogatives, or otherwise earned congressional ire. If a domestic terrorism law is passed, the FBI will feel as little constrained by the details of the statute as it does about FISA’s technicalities. Will FBI agents conducting warrantless searches rely on the same harebrained standard the NSA used to target Americans: “someone searching the web for suspicious stuff”? Unfortunately, unless an FBI whistleblower with the same courage as former NSA analyst Edward Snowden steps forward, we may never know the extent of FBI abuses.