Legislation being offered by the House Judiciary Committee, “The Protect Liberty and End Warrantless Surveillance Act,” would amend the Foreign Intelligence Surveillance Act to prohibit accessing surveillance of American citizens located in the United States for non-intelligence purposes without a search warrant for a criminal act.
The proposal creates a clear prohibition: “no officer or employee of the United States may conduct a query of information acquired under this section in an effort to find communications or information the compelled production of which would require a probable cause warrant if sought for law enforcement purposes in the United States, of or about 1 or more United States persons or persons reasonably believed to be located in the United States at the time of the query or the time of the communication or creation of the information.”
That is, unless one of four exceptions apply.
Either, the person is believed to be an agent of a foreign power or the Attorney General is telling the Foreign Intelligence Surveillance Court that there is an emergency that requires an emergency physical search: “such person is the subject of an order or emergency authorization authorizing electronic surveillance or physical search under section 105 or 304 of this Act, or a warrant issued pursuant to the Federal Rules of Criminal Procedure by a court of competent jurisdiction covering the period of the query…”
Section 105 refers to 50 U.S. Code § 1805(a)(2)(A), which allows surveillance of U.S. persons believed to be agents of a foreign power: “the target of the electronic surveillance is a foreign power or an agent of a foreign power: Provided, That no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States.”
Section 304 refers to emergency orders under 50 U.S. Code § 1824(e)(1), which allows for surveillance when the Attorney General “reasonably determines that an emergency situation exists with respect to the employment of a physical search to obtain foreign intelligence information before an order authorizing such physical search can with due diligence be obtained; … reasonably determines that the factual basis for issuance of an order under this subchapter to approve such physical search exists; …. informs, either personally or through a designee, a judge of the Foreign Intelligence Surveillance Court at the time of such authorization that the decision has been made to employ an emergency physical search; and … makes an application in accordance with this subchapter to a judge of the Foreign Intelligence Surveillance Court as soon as practicable, but not more than 7 days after the Attorney General authorizes such physical search.”
Or, there must be an imminent danger to life and limb and there’s simply no time to get to the proper court of jurisdiction: “an emergency exists involving an imminent threat of death or serious bodily harm; and… in order to prevent or mitigate this threat, the query must be conducted before authorization [under the law] can, with due diligence, be obtained; and… a description of the query is provided to the Foreign Intelligence Surveillance Court and the congressional intelligence committees and the Committees on the Judiciary of the House of Representatives and of the Senate in a timely manner.”
This second exception appears similar to the emergency orders under Section 304, however, 304 still applies to surveillance based on whether the person is supposed to be a foreign agent and is supposed to be about gathering foreign intelligence. Whereas the new exception has to do with a danger of an imminent attack of some sort and if the section is invoked then it still goes to the Foreign Intelligence Surveillance Court, but it also goes to the House and Senate Intelligence and Judiciary Committees.
The third exception would be to find malicious software being deployed to see who is being targeted by the malware: “the query uses a known cybersecurity threat signature as a query term; … the query is conducted, and the results of the query are used, for the sole purpose of identifying targeted recipients of malicious software and preventing or mitigating harm from such malicious software; … no additional contents of communications retrieved as a result of the query are accessed or reviewed; … all such queries are reported to the Foreign Intelligence Surveillance Court.”
And the fourth exception is if the U.S. person consented to be surveilled for whatever reason: “such person or, if such person is incapable of providing consent, a third party legally authorized to consent on behalf of such person, has provided consent to the query on a case-by-case basis…”
Now, all that said, the legislation would also apply additional restrictions and limits on how information gathered for foreign intelligence or emergency purposes can be used in a criminal context. When that happens, the passing along of information would occur when the Attorney General allows it and when it is related to some sort of attack on the U.S., counterintelligence or drug cartels: “the commission of a Federal crime of terrorism …. [or] actions necessitating counterintelligence (as defined in section 3 of the National Security Act of 1947 (50 U.S.C. 3003)) … [or] the proliferation or the use of a weapon of mass destruction … [or] a cybersecurity breach or attack from a foreign country …. [or] incapacitation or destruction of critical infrastructure … [or] an attack against the armed forces of the United States or an ally of the United States or to other personnel of the United States Government or a government of an ally of the United States; or … international narcotics trafficking.”
On the “actions necessitating counterintelligence” provision, counterintelligence is defined under 50 U.S.C. § 3003 as “information gathered, and activities conducted, to protect against espionage, other intelligence activities, sabotage, or assassinations conducted by or on behalf of foreign governments or elements thereof, foreign organizations, or foreign persons, or international terrorist activities.”
And then if the target of an investigation happens to be a member of a U.S. political organization, including a presidential or Congressional campaign or any other campaign for public office, then the matter gains heightened scrutiny at the Foreign Intelligence Surveillance Court and would invoke new adversarial proceedings, in which case the court “shall… appoint 1 or more individuals who have been designated… not fewer than 1 of whom possesses privacy and civil liberties expertise, unless the court finds that such a qualification is inappropriate, to serve as amicus curiae to assist the court in the consideration of any application or motion for an order or review that, in the opinion of the court… presents a novel or significant interpretation of the law; … presents significant concerns with respect to the activities of a United States person that are protected by the first amendment to the Constitution of the United States; …. presents or involves a sensitive investigative matter; … presents a request for approval of a new program, a new technology, or a new use of existing technology; … presents a request for reauthorization of programmatic surveillance; … otherwise presents novel or significant civil liberties issues; or … otherwise involves the activities of a United States person…” in which a “sensitive investigative matter” would be defined as “a domestic public official or political candidate, or an individual serving on the staff of such an official or candidate; … a domestic religious or political organization, or a known or suspected United States person prominent in such an organization; … the domestic news media; or… any other investigative matter involving a domestic entity or a known or suspected United States person that, in the judgment of the applicable court … is as sensitive as an investigative matter.”
So, there would be an adversarial proceeding at the Foreign Intelligence Surveillance Court. That is, “unless the court issues a finding that appointment is not appropriate.”
Now, one might be reading that and thinking, “Those are a lot of exceptions!” And that’s right. The reforms being offered do not appear to prohibit for uses in a criminal context, but for the first time it limits those instances of parallel construction. And it still allows surveillance on U.S. persons for purposes that the federal government was already surveilling people for, even if it’s directed at a political campaign.
For example, these reforms do not appear that they would have prohibited the Carter Page FISA warrant issued in 2016 against the Trump campaign, which was issued because Page was suspected of being a foreign agent. That would still be allowed.
To make the accusation, as happened with the Trump campaign beginning in Oct. 2016, the FBI and the Justice Department had to give the FISA Court a “statement of the facts and circumstances relied upon by the applicant to justify his belief that… the target of the electronic surveillance is a foreign power or an agent of a foreign power…”
The Oct. 2016 application to the FISA Court stated, “The target of this application is Carter W. Page, a U.S. person, and an agent of a foreign power… The status of the target was determined in or about October 2016 from information provided by the U.S. State Department…”
In part, those allegations relied on the Clinton campaign and DNC-financed Christopher Steele dossier that there was a “well-developed conspiracy” by Russia and the Trump campaign to hack the DNC and John Podesta and give their emails to Wikileaks.
But they also stated as part of the justification for that interference in the Trump campaign was that Russia was attempting to convince the Trump campaign to not send weapons to Ukraine and to instead recognize Russia’s annexation of Crimea in Ukraine, telling the FISA Court that the Trump campaign, per the FISA application, “worked behind the scenes to make sure [the Republican] platform would not call for giving weapons to Ukraine to fight Russian and rebel forces” stating Trump “might recognize Crimea as Russian territory and lift punitive U.S. sanctions against Russia,” citing news reports.
The Justice Department also included an Aug. 2016 Politico story highlighting Trump’s positions on Ukraine, including his suggestion the people of Crimea preferred to live in Russia, and his doubts that the territories Russia had seized could be reclaimed without World War III, which Trump was running against on the campaign trail as much as Hillary Clinton.
At a Harrisburg, Pennsylvania, Politico quoted Trump saying a military conflict to take back Crimea would risk nuclear war: “You wanna go back? …You want to have World War III to get it back?” And it quoted Trump on ABC’s “This Week” suggesting the people of Crimea supported Russian annexation: “The people of Crimea, from what I’ve heard, would rather be with Russia than where they were.” This was Trump’s anti-war position in 2016 that helped him secure narrow wins in Pennsylvania, Michigan and Wisconsin and an Electoral College majority against Hillary Clinton, who he often called a war-monger.
So, that was the predicate before the FISA Court: A foreign power was allegedly attempting to influence the candidate, Trump, via campaign volunteers like Page but also hired help like Manafort, to recognize Russia’s claims to Ukraine’s sovereign territories in order to avert war. But these are also political and policy differences Trump had with the Obama administration and his opponent, Hillary Clinton.
During the convention, Paul Manafort was campaign chairman, who was swiftly removed by Trump after the New York Times non-coincidentally ran an erroneous hit piece in Aug. 2016 stating he had corrupt dealings in Ukraine, with a supposed ominous sounding “black ledger.” Manafort was the campaign manager of deposed former Ukrainian President Viktor Yanukovych when he was first elected in 2010. He also helped Gerald Ford secure the Republican nomination on the floor against Ronald Reagan in 1976, and then helped Reagan do the same thing in 1980. In 2016, Trump tapped him to win the convention by ensuring Trump delegates he won in the primaries would vote for him on the floor.
Page was similarly removed from the campaign when a Sept. 2016 news story appeared alleging, falsely as it turned out, he was a Russian agent.
Ultimately, former Special Counsel Robert Mueller found there was no Trump campaign conspiracy with Russia to hack the DNC and give the emails to Wikileaks. According to Mueller’s final report to the Attorney General, “the evidence was not sufficient to charge that any member of the Trump Campaign conspired or coordinated with representatives of the Russian government to interfere in the 2016 election.”
The report added, “In particular, the Office did not find evidence likely to prove beyond a reasonable doubt that Campaign officials such as Paul Manafort, George Papadopoulos, and Carter Page acted as agents of the Russian government — or at its direction, control or request — during the relevant time period.”
Manafort was brought up on unrelated tax and bank fraud charges. As for former Trump lawyer Michael Cohen, he had his own set of problems, but being a Russian agent is not one of them. Per the Mueller report, “Cohen had never traveled to Prague…” And so, he very well could not have been there meeting with Russian intelligence officials. We knew that as early as Jan. 2017 when Buzzfeed published the dossier and Cohen showed his passport saying he had never been to the Czech Republic.
As for Page, he was never charged with anything. A footnote by Mueller nonetheless attempted to justify the issuance of the FISA warrants against him, stating, “On four occasions, the Foreign Intelligence Surveillance Court (FISC) issued warrants based on a finding of probable cause to believe that Page was an agent of a foreign power. 50 U.S.C. §§ 1801(b), 1805(a)(2)(A). The FISC’s probable-cause finding was based on a different (and lower) standard than the one governing the Office’s decision whether to bring charges against Page, which is whether admissible evidence would likely be sufficient to prove beyond a reasonable doubt that Page acted as an agent of the Russian Federation during the period at issue. Cf United States v. Cardoza, 713 F.3d 656, 660 (D.C. Cir. 2013) (explaining that probable cause requires only ‘a fair probability,’ and not ‘certainty, or proof beyond a reasonable doubt, or proof by a preponderance of the evidence’).”
Remarkably, it seems the Justice Department knew there was no conspiracy with Russia as early as 2017 as was revealed by Justice Department Inspector General Michael Horowitz, certainly by the time Mueller was appointed, but who kept the shameful inquiry going for another two years.
The FBI finally contacted former British spy Christopher Steele’s sources and after the surveillance had already been renewed once, in Jan. 2017. According to the inspector general report, once the main source that Steele used was contacted, “the Primary Sub-source made statements during his/her January 2017 FBI interview that were inconsistent with multiple sections of the Steele reports, including some that were relied upon in the FISA applications. Among other things, regarding the allegations attributed to Person 1, the Primary Sub-source’s account of these communications, if true, was not consistent with and, in fact, contradicted the allegations of a ‘well-developed conspiracy’…” Their case had collapsed. But on and on it went. Why?
As Congress considers FISA reauthorization, it must consider the only reasons we learn about any of this is because classified information was revealed to the public, in almost every case, via legal processes that were initiated by executive branch officials including the Attorney General, the President.
There is the exceptional case of Buzzfeed which published the Steele dossier in Jan. 2017, via First Amendment protected journalism. Steele and the Democrats were so anxious to shop the Russiagate story everywhere, they had distributed the dossier to major news outlets throughout the country. It was a gift to the American people, insofar as it would have required a declassification process to get at it.
Otherwise, all of these disclosures were completed by the Trump administration acquiescing to Congressional requests for information and Judicial Watch’s Freedom of Information Act (FOIA) request.
For example, the Justice Department Inspector General investigation by Michael Horowitz was only ever undertaken “in response to requests from the Attorney General and Members of Congress,” according to the March 28, 2018 statement issued by the Inspector General.
The Mueller report itself was ordered by the Attorney General and included its own declassification process. Portions of the Mueller report remain heavily redacted.
Much the same for the released transcripts of his phone calls between former National Security Advisor Michael Flynn and Russian Ambassador Sergei Kislyak on Dec. 23, 2016, Dec. 29, 2016 and Dec. 31, 2016 that showed Flynn engaging with Kislyak to stop a dangerous escalation in U.S.-Russian relations from occurring during the presidential transition of 2016 after the election were only ever revealed “[i]n response to bipartisan requests regarding the LTG Michael Flynn (Retired) transcripts” and were declassified by former President Donald Trump in 2020, according to the Director of National Intelligence’s office.
Flynn was similarly removed as National Security Advisor after the calls were non-coincidentally leaked to the Washington Post in Jan. 2017.
So, if you are running for public office (or not apparently) and you disagree with U.S. foreign policy and have any contact whatsoever with agents of a foreign power, or even if you don’t, you could still be subjected to surveillance under the law. In 2016, the question was what to do about Ukraine, send them weapons, don’t send them weapons, etc. and Russia, which at that point had already annexed Crimea in 2014 after Yanukovych was removed from power in Kiev.
Trump was proposing an alternative course that in his eyes might have avoided a further expansion of the war in that region, Russia was said to have hacked the DNC (according to the DNC), Carter Page traveled to Moscow and Christopher Steele reported that Trump had helped Moscow with the alleged DNC hack. If all those facts were true, even under the proposed legislation, because Page was being accused of being an agent of a foreign power, the FISA warrant would still have been allowed.
Therefore, under the proposal, the surveillance that began Russiagate seemingly would still be allowed, and it would still have allowed the counterintelligence investigation of the Trump campaign to proceed. A good question might be whether the criminal investigation launched by the Justice Department after former FBI Director James Comey was fired, which was the obstruction of justice side of the investigation, would have been allowed, and it is hard not to see how it wouldn’t. Under former acting Attorney General Rod Rosenstein (at that point former Attorney General Jeff Sessions had already recused himself), Trump fired Comey under his Article II authority because of the conduct of the counterintelligence investigation, and that was enough for Rosenstein to appoint former Special Counsel Mueller at the time.
So, the proposed law could not have prevented Russiagate per se, but it might have allowed for there to be an adversarial proceeding at the Foreign Intelligence Surveillance Court to at least challenge it — but only if the court agreed to allow for opposition.
The other thing it appears to not address is the federal government’s ability to download and store all communications that occur in the U.S., a capability revealed in 2013 by former National Security Agency contractor Edward Snowden, who subsequently fled to Russia.
The capability appeared to be admitted to by former National Security Agency (NSA) head Gen. Keith Alexander in testimony to the Senate Appropriations Committee on June 12, 2013 admitting that phone metadata on everybody is in fact being collected in real-time.
Alexander stated: “If we didn’t collect that ahead of time, we couldn’t make these connections, so what we create is a set of data and we put it out here and then only under specific times can we query that data.”
Here, Alexander was referring to the periodic collection of phone records by the agency from Verizon and presumably all other phone carriers, enabling the agency to go back in time and see who called who, at what time, and for what duration.
Alexander referred to a problem encountered during the 9/11 terrorist plot to justify the collection: “We all had this concern coming out of 9/11. How are we going to protect the nation because we did get intercepts on [hijacker Khalid al] Mihdhar, but we didn’t know where he was, we didn’t have the data collected to know that he was a bad person.”
Alexander continued, “And because he was in the U.S., the way we treat it is he’s a U.S. person, so we had no information on that.” So, the collection of the phone metadata on U.S. persons on an ongoing basis, therefore, was to enable the agency to be able to connect the dots on an impending domestic terrorist attack and potentially prevent it, according to Alexander.
Alexander hypothesized, what if this system had been in place? “Because we had stored that data in a database, we now have what we call a reasonable, articulable suspicion, we could take that number and go backwards in time and see who he was talking to and if we saw there were four other groups, we wouldn’t know who those people were, we’d only get the numbers, we’d say this looks of interest, and pass that to the FBI.”
At this point in his testimony, Alexander was still only referring to the phone metadata, and how it is being accessed. But how does this process work? He explained, “The methodology would be let’s put into a secure environment call details — these are to-from records, and at a selected time. So we don’t know anything that’s in there, we won’t search that unless we have some reasonable, articulable suspicion about a terrorist-related organization.”
He added, “The system just gives us back who he was talking to, but if you didn’t collect it, how do you know who he’s talking to? And so the issue really becomes if you don’t have the information.”
Alexander asked, “How do we solve this problem?” Now we know. In short, the government decided to collect all of the phone records domestically. Then, he added, “once we identify a person of interest, it goes to the FBI.”
The hearing then turned to court orders and warrants. When are those issued? A periodic, generalized warrant is issued to give the agency access to the phone records nationwide, but what about the content of the communications?
The late Sen. Dianne Feinstein (D-Calif.), then chair Senate Intelligence Committee, asked Alexander, “It’s my understanding you have the metadata, you have the records of what appears on a phone bill, and if you want to go to the content, then you have to get a court order.”
Alexander responded, “It’s correct,” adding later, “Sen. Feinstein, if you want to get the content, you’d have to get a court order.”
This was the most alarming part of the 2013 testimony: NSA was confirming that, yes, it is possible with a court order to go back and retrieve the content of a phone call that had appeared in the metadata.
This was further confirmed by former Tim Clemente, a former FBI counterterrorism agent, on May 1, 2013 on CNN’s Out Front with Erin Burnett, speaking about how the FBI could go back in time to get the contents of conversations in the context of the Boston Marathon bombings by the Tsarnaev brothers.
Burnett asked if the government could listen in, after the fact, to telephone conversations between Katherine Russell, widow of the deceased Boston terrorist bombing suspect, Tamerlan Tsarnaev, and her late husband.
Clemente nonchalantly claimed it was possible: “[T]here is a way. We certainly have ways in national security investigations to find out exactly what was said in that conversation.”
Burnett was shocked, asking again: “So they can actually get that? People are saying, look, that is incredible.”
This raises clear constitutional questions, because conversations on U.S. persons can be recorded only when there is probable cause and a warrant issued by a court. Not beforehand. It implied the NSA was and is recording everything.
This is exactly why the late Sen. Frank Church (D-Idaho) convened the original Church committee in the first place.
The whole reason the Foreign Intelligence Surveillance Act of 1978 was adopted was prevent unconstitutional domestic spying. A select committee headed by Sen. Frank Church (D-Idaho) convened in 1975 to get to the bottom of revelations by Seymour Hersh’s explosive report to the New York Times on Dec. 22, 1974 that the CIA had been engaged a mass, domestic surveillance program against anti-war protestors, members of Congress and other political figures.
On NBC’s Meet the Press on Aug. 17, 1975, Church who had led the committee warned, “If this government ever became a tyranny, if a dictator ever took charge in this country, the technological capacity that the intelligence community has given the government could enable it to impose total tyranny, and there would be no way to fight back because the most careful effort to combine together in resistance to the government, no matter how privately it was done, is within the reach of the government to know. Such is the capability of this technology…”
Church added, “I don’t want to see this country ever go across the bridge. I know the capacity that is there to make tyranny total in America, and we must see to it that this agency and all agencies that possess this technology operate within the law and under proper supervision so that we never cross over that abyss. That is the abyss from which there is no return.”
The committee led to the adoption of the law, which sought to reform how intelligence is gathered and the limited circumstances it can be used in the U.S.
Sadly, FISA has become a rubber stamp and an instrument of not merely political surveillance, but of one-party rule and even has been used to push the U.S. closer to nuclear war with Russia, which we are now on the apparent brink of.
What the FISA statute and the proposed legislation address is when and how that information might be accessed and under what circumstances, and then what the oversight of that by the Foreign Intelligence Surveillance Court. Under the proposed changes, there would be more limitations and oversight, and a potential adversarial proceeding, but won’t prohibit the federal government from collecting all of the data “just in case,” even if the Fourth Amendment clearly does. The question for members is: Knowing FISA’s Section 702 will almost certainly be reauthorized, are these proposed changes good enough for now, or do they authorize the types of surveillance opponents are seeking to rein in?
Robert Romano is the Vice President of Public Policy at Americans for Limited Government Foundation.
