Patriot's Blog Archives for 2021-05

The Problems With FISA Part 2

The Foreign Intelligence Surveillance Act and Its Regime of Secrecy

 

Passed in 1978, the Foreign Intelligence Surveillance Act (FISA) dictates how the government conducts physical and electronic surveillance for national security purposes against “foreign powers” and “agents of foreign powers.” FISA allows surveillance against “U.S. persons,” Americans and others in the U.S., so long as the agency doing the surveillance demonstrates and provides probable cause that the U.S. person is engaged in terrorism, espionage, or other activities on behalf of a foreign power.

Typically when law enforcement conducts a search, the Fourth Amendment requires that they get a search warrant approved by a neutral magistrate, a judge assigned to hear warrant applications. Under FISA, surveillance orders go through a slightly different review. The statute created an entirely separate court venue filled with 11 judges designated to review FISA surveillance orders. These judges make up the Foreign Intelligence Surveillance Court (FISC).                                                                                    

Similar to how courts review standard search warrants, FISC judges review FISA surveillance applications out of public view. Judges typically hear arguments from the government and no one else, court hearings are not public, and the FISA orders themselves are kept secret.

(Notably, this warrant-like review does not happen under Section 702 of FISA, which the NSA uses to collect billions of communications without a warrant, including Americans’ communications. Under Section 702, which you can read about here, FISC judges do not review individual targets of surveillance and instead sign off on programmatic surveillance policies.)

In the FISC, secrecy in each step is heightened. The court’s opinions and any transcript or record of the proceedings are automatically classified. Even the court’s physical location is constructed to be “the nation’s most secure courtroom,” with reinforced concrete and hand scanners to keep unauthorized people out.

This secrecy is hard to unravel after the fact. When recently asked by Rep. Nunes for more information about the renewed FISA surveillance warrant on Carter Page, Rosemary Collyer, the presiding judge of the FISC wrote:

“As you know, any such transcripts would be classified. It may also be helpful for me to observe that, in a typical process of considering an application, we make no systematic record of questions we ask or responses the government gives.”

Although surveillance conducted for run-of-the-mill law enforcement is often shadowy, the FISA process is far more shielded from public view. For example, standard search warrants are used to gather evidence for later prosecutions that are by default public. That means at some point the government has to face—and knows it has to face—a defense attorney’s efforts to question the evidence gathered from the search warrant. This is known as a “motion to suppress,” and with typical search warrants, these motions are filed in a public court. When that court hears a motion to suppress, it usually issues an order discussing why the surveillance violated—or didn’t violate—the law. This is how our legal system is intended to function. Lawyers and the public actually learn what the law is through this process, because in our system it is the duty of courts to “say what the law is.” For that reason, secret law is a perversion of our system.

Moreover, the public disclosure of law enforcement search warrants serves important ends outside of any particular legal challenge. For one, they let the public know what police are doing, both in their name and with their tax dollars. Second, they allow for greater accountability when police overstep their authority or otherwise misbehave.

FISC proceedings routinely fail this test.

FISA orders are for foreign intelligence purposes, so the surveillance is rarely used in a prosecution and rarely challenged in a motion to suppress.  Moreover, even if the fruits of FISA surveillance are used in court, criminal defendants and other litigants are deprived of access to this information, so they have little way of knowing if evidence brought against them may have come from an improper FISA order. (FISA provides a mechanism for defendants to request this information, but no defendant has succeeded in doing so in FISA’s 40-year history.) This impedes a defendant’s ability to challenge their prosecution, and it prevents related, public knowledge of these challenges.

But the secrecy in FISA extends much further than FISC, adding further opaque layers between what intelligence agencies and the court do and what the public sees.

 

This will be a four part series, this is part two of four on the topic for today. I hope you enjoyed the blog and learned a few new facts, thank you for reading.

The Problems With FISA Part 1

The Problems With FISA, Secrecy, and Automatically Classified Information

 

We need to talk about national security secrecy. Right now, there are two memos on everyone’s mind, each with its own version of reality. But the memos are just one piece. How the memos came to be—and why they continue to roil the waters in Congress—is more important.                                   

On January 19, staff for Representative Devin Nunes (R-CA) wrote a classified memo alleging that the FBI and DOJ committed surveillance abuses in its applications for and renewal of a surveillance order against former Trump administration advisor Carter Page. Allegedly, the FBI and DOJ’s surveillance application included biased, politically-funded information.

The House Permanent Select Committee on Intelligence, on which Rep. Nunes serves as chairman, later voted to release the memo. What the memo meant, however, depended on who was talking.  Some Republican House members took the memo as fact, claiming it showed “abuse” and efforts to “undermine our country.”  But Rep. Adam Schiff (D-CA)—who serves as Ranking Member on the House Permanent Select Committee on Intelligence, across from Nunes—called the memo “profoundly misleading” and, in an opinion for The Washington Post, said it “cherry-picks facts.”

Even the FBI entered the debate, slamming the memo and saying the agency had “grave concerns about material omissions of fact that fundamentally impact the memo's accuracy." And Assistant Attorney General Stephen Boyd of the DOJ said releasing the memo without review would be “extraordinarily reckless.” Finally, the president said the memo “totally vindicates” him from special counsel Robert Mueller’s investigation into his administration.

So a lawmaker made serious charges about surveillance abuses and corruption at the highest levels, and the rest of Congress and the public were ensnared in a guessing game: Could they trust Devin Nunes and what he says? Is the memo he wrote, and the allegations in it, just smoke or is there fire? Unfortunately, the information needed to evaluate his claims is hidden within multiple, nested layers of secrecy.

The secrecy starts with surveillance applications and secret court opinions, which are protected by classification that requires proper security clearance. Only a handful of lawmakers can read the materials, but even they can’t openly discuss them in public. They could write a report, but the FBI and Justice Department would ask to redact the report. After redactions, the report would be subject to a committee vote for release. If the report is cleared by committee, it ordinarily requires the president’s approval.

At any point in the process, this information could have been mislabeled, misidentified, embellished, or obscured, and we’d have almost no way of knowing.

It’s time to talk about FISA again, and the problems with its multi-layered secrecy regime.

We’re going to talk about a surveillance law that, when passed, installed secrecy both in a court system and in Congress, barring the public and their representatives from accessing important information. When that information is partially revealed, it’s near impossible for the public to trust it.

 

This will be a four part series, this is part one of four on the topic for today. I hope you enjoyed the blog and learned a few new facts, thank you for reading.

Rules of Civility & Decent Behavior

Rules of Civility & Decent Behavior

 

By age sixteen, Washington had copied out by hand, 110 Rules of Civility & Decent Behavior in Company and Conversation. They are based on a set of rules composed by French Jesuits in 1595. Presumably they were copied out as part of an exercise in penmanship assigned by young Washington's schoolmaster. The first English translation of the French rules appeared in 1640, and are ascribed to Francis Hawkins the twelve-year-old son of a doctor. 

 

Today many, if not all of these rules, sound a little fussy if not downright silly. It would be easy to dismiss them as outdated and appropriate to a time of powdered wigs and quills, but they reflect a focus that is increasingly difficult to find. The rules have in common a focus on other people rather than the narrow focus of our own self-interests that we find so prevalent today. Fussy or not, they represent more than just manners. They are the small sacrifices that we should all be willing to make for the good of all and the sake of living together. 

 

These rules proclaim our respect for others and in turn give us the gift of self-respect and heightened self-esteem. 

 

Richard Brookhiser, in his book on Washington wrote that "all modern manners in the western world were originally aristocratic. Courtesy meant behavior appropriate to a court; chivalry comes from chevalier – a knight. Yet Washington was to dedicate himself to freeing America from a court's control. Could manners survive the operation? Without realizing it, the Jesuits who wrote them, and the young man who copied them, were outlining and absorbing a system of courtesy appropriate to equals and near-equals. When the company for whom the decent behavior was to be performed expanded to the nation, Washington was ready. Parson Weems got this right, when he wrote that it was 'no wonder every body honoured him who honoured every body.'"

 

This will conclude the topic for today. I hope you enjoyed the blog and learned a few new facts, thank you for reading.

The Border Debates' Missing Argument Part 6

How the U.S. government tackles gun trafficking — and what’s changed under Trump

 

There is an official government process in place to tackle the gun trafficking. But while critics have continued calling on the government to do more, it’s unclear whether the Trump administration has prioritized the issue.

Under an existing agreement, ATF and Homeland Security Investigations (HSI), a unit of the Department of Homeland Security that investigates illicit activities, work together to tackle gun trafficking to Mexico and Central America. The agencies’ cooperation is outlined in a memorandum of understanding, first reached in 2009, which established how the agencies should collaborate and share intelligence.

Currently, the two agencies meet monthly “to navigate the complexities associated with illegal international firearms trafficking and to cultivate relationships to improve the working knowledge of agencies,” said Matthew Bourke, a spokesperson for U.S. Immigration and Customs Enforcement.

The investigations agency also conducts probes and carries out arrests. According to government data, in 2018, HSI opened 1,269 investigations and made 546 arrests that were related to Counter Proliferation Investigations, a program that focuses on weapons trafficking.

Still, in recent years some government agencies have called for more action.

In its 2016 report, GAO issued another recommendation for the White House’s Office of National Drug Control Policy (ONDCP) calling for a revision to the Southwest Border Counternarcotics Strategy, a biennial report issued by ONDCP since 2007 outlining a strategy to curb the flow of illicit drugs, associated proceeds, and instruments of violence across the U.S.-Mexico border. The auditing agency recommended including in this document a set of indicators that would better measure efforts to curtail arms trafficking across the border. ONDCP has not revised the strategy since 2016 and has not yet implemented GAO’s recommendation.

“As of February of 2019, the time of our most recent outreach, there was no change in the situation,” said Jenny Grover, GAO analyst.

In March, Sen. Dick Durbin, D-Ill., requested an update to the 2016 GAO report that determined that 70 percent of firearms seized in Mexico come from the United States.

“The Trump administration talks tough, but they have turned a blind eye to this ‘iron river’ of guns flowing south. I’ve asked GAO to update its analysis of this firearms trafficking to help inform Congress’s efforts to address this challenge,” Durbin told the PBS NewsHour in a statement.

The need for more and better data on guns flowing south to Latin America from the U.S. cannot be overstated, said Matt Schroeder, a senior analyst at Small Arms Survey. Until the government has a better understanding of the problem, gun trafficking will remain a serious issue.

“Publicly available data on the arms trade — both legal and illegal — is scant,” Schroeder said. “The data that is available is often woefully inadequate for tracking illicit arms flows and identifying the sources of black market weapons.”

 

This will conclude the sixth part of this blog and will be the final part in the series. I hope you enjoyed the series and learned a few new facts, thank you for reading.