Congressional Authority for National Security Surveillance and FBI Abuses Report

Chapter 21 - Congressional Authority for National Security Surveillance Congress Responds to the Church Committee s Report 1

FBI Abuses - Church Committee Report : : : FBI headquarters alone has developed over 500,000 domestic intelligence files, and these have been augmented by additional files at FBI Field Offices. The FBI opened 65,000 of these domestic intelligence files in 1972 alone. In fact, substantially more individuals and groups are subject to intelligence scrutiny than the number of files would appear to indicate, since typically, each domestic intelligence file contains information on more than one individual or group, and this information is readily retrievable through the FBI General Name Index. Nearly a quarter of a million first class letters were opened and photographed in the United States by the CIA between 1953-1973, producing a CIA computerized index of nearly one and one-half million names. At least 130,000 first class letters were opened and photographed by the FBI between 1940-1966 in eight U.S. cities. 2

Some 300,000 individuals were indexed in a CIA computer system and separate files were created on approximately 7,200 Americans and over 100 domestic groups during the course of CIA Operation CHAOS (1967-1973). Millions of private telegrams sent from, to, or through the United States were obtained by the National Security Agency from 1947 to 1975 under a secret arrangement with three United States telegraph companies. An estimated 100,000 Americans were the subjects of United States Army intelligence files created between the mid-1960 fs and 1971. Intelligence files on more than 11,000 individuals and groups were created by the Internal Revenue Service between 1969 and 1973 and tax investigations were started on the basis of political rather than tax criteria. At least 26,000 individuals were at one point catalogued on an FBI list of persons to be rounded up in the event of a national emergency. 3

Think Like 1978 Paper mail Telephone calls over traditional copper wire networks Telegraph and other commercial wire communications Records are mostly paper documents in file cabinets. Limited domestic terrorism 1954 Attack on the Capitol No foreign attacks on US soil since WWII. Primary concern was traditional espionage and spies. Heart of the Cold War with the Soviet Union. Theft of US atomic weapons secrets the Rosenbergs. The Supreme Court had just shown that the 4th Amendment was flexible in Camera. FISA was focused on foreign actions and actors as special circumstances. 4

Inadvertent Collection of Information on US Persons The key to FISA is that it recognizes that information will be inadvertently collected on US persons in the US with less than 4th Amendment warrant clause protections. It provides protections for the sharing and dissemination of that information. But it also has provisions for using it in criminal prosecutions. It can always be used for prevention. 5

Review the Statute (Drawboard) FISA 50 U.S. Code 1801 Definitions FISA Procedures for warrantless collection (foreign powers) FISA 50 U.S. Code 1805 Issuance of order FISA 50 U.S. Code 1806 Use of information 6

Sunset of FISA Provisions Roving wire taps Lone wolf provisions 7

The Confrontation Clause as a Check on Warrants While warrants are issued ex parte, those warrants will generally (1978) be subject to collateral attack when the evidence is used in future proceedings. Is this even true for criminal warrants today? > 95% of criminal cases are settled without a trial, mostly by overworked PDs. Why are FISA warrants even harder to attack? 8

What does Duggan tell us about probable cause under FISA? We conclude that these requirements provide an appropriate balance between the individual s interest in privacy and the government s need to obtain foreign intelligence information, and that FISA does not violate the probable cause requirement of the Fourth Amendment. . . . United States v. Duggan, 743 F.2d 59 (2d Cir. 1984) 9

The Franks Motion (Collateral Attack) Problem A Franks motion is premised on material misrepresentations and omissions in the warrant affidavit; but without access to that affidavit, a defendant cannot identify such misrepresentations or omissions, let alone establish that they were intentionally or recklessly made. As a practical matter, the secrecy shrouding the FISA process renders it impossible for a defendant to meaningfully obtain relief under Franks absent a patent inconsistency in the FISA application itself or a sua sponte disclosure by the government that the FISA application contained a material misstatement or omission. (Daoud) 10

United States v. Rosen, 447 F. Supp. 2d 538 (DC EDV 2006) [We will see this case again when we look at the Espionage Act.] This proceeding is a motion to quash the information gathered through the FISA warrant. Since we have already reviewed the basic provisions of the FISA statute, we will focus on the remaining issues in Rosen. Defendants are lobbyists for AIPIC who give the information they received from the government employee to the media. How do they get information from government employees? Is this different from what reporters do? 11

Who was their co-conspirator? Lawrence Franklin worked on the Iran desk in the Office of the Secretary of the Department of Defense (DOD) and held a top secret security clearance during the alleged conspiracy. What happened to Franklin before this case? On October 5, 2005, Franklin pled guilty to one count of conspiracy to communicate national defense information to one not entitled to receive it, in violation of 18 U.S.C. 793(d) and (g), and to one count of conspiracy to communicate classified information to an agent of a foreign government in violation of 50 U.S.C. 783 and 18 U.S.C. 371. No question he violated the Espionage Act. 12

What were they indicted for? In general, the superseding indictment alleges that in furtherance of their lobbying activities, defendants (i) cultivated relationships with government officials with access to sensitive U.S. government information, including NDI, (ii) obtained the information from these officials, and (iii) transmitted the information to persons not otherwise entitled to receive it, including members of the media, foreign policy analysts, and officials of a foreign government. 13

Can FISA Warrant Obtained Evidence be Used in Criminal Trials? Although FISA is chiefly directed to obtaining foreign intelligence information, the Act specifically contemplates cooperation between federal authorities conducting electronic surveillance and physical searches pursuant to FISA and federal law enforcement officers investigating clandestine intelligence activities. In this respect, FISA explicitly allows the use of evidence derived from FISA surveillance and searches in criminal prosecutions. 14

Defendants Attack on the Warrant Defendants attack on the lawfulness of the FISA surveillance in this case focuses chiefly on two issues: (1) whether the FISC had probable cause to believe that the targets of the sanctioned surveillance were agents of a foreign power, as required by FISA, and (2) whether there was proper compliance with the minimization procedures subsequent to the surveillance. 15

What is the Standard of Review? The district court does a de novo review of the warrant for a suppression hearing. This is a four corners review of the document, in that the court presumes that the representations in the application for the warrant are correct. The court only reviews for facial inconsistencies and to assure that the target, the information to be sought, and the other provisions of the warrant satisfy the requirements of the Act. The court only discloses information to the defendant if it finds problems with the warrant. The judge must coordinate with the government if the information implicates national security. 16

Can a 1st Amendment Activity Itself Be Unlawful? [F]oreign intelligence services [are] hid[ing] behind the cover of some person or organization in order to influence American political events and deceive Americans into believing that the opinions or influence are of domestic origin and initiative and such deception is willfully maintained in violation of the Foreign Agents Registration Act. Defendants are lobbyists for an Israeli lobby. Does the Act say a hostile foreign power? Who does Israel work with that causes national security concerns? No nation has friends only interests. Charles de Gaulle 17

Are Defendants Protected Because They Are Engaged in 1st Amendment Activity? Thus, while the statute is intended to avoid permitting electronic surveillance solely on the basis of First Amendment activities, it plainly allows a FISC judge to issue an order allowing the surveillance or physical search if there is probable cause to believe that the target, even if engaged in First Amendment activities, may also be involved in unlawful clandestine intelligence activities, or in knowingly aiding and abetting such activities. Reporters can be spies. The CIA has used journalists as spies. 18

The FISA Probable Cause Standard the probable cause determination does not necessarily require a showing of an imminent violation of criminal law because Congress clearly intended a lesser showing of probable cause for these activities than that applicable to ordinary cases. Illustrative of this intent is FISA s description of clandestine intelligence activities as those that involve or may involve a violation of the criminal statutes of the United States. [Looks like an administrative law area warrant.] 19

Can FISA be Applied to Pre-Crime? Remember, this is only an issue for prosecutions, not actions to prevent the crime. As FISA s drafters made clear: The term may involve not only requires less information regarding the crime involved, but also permits electronic surveillance at some point prior to the time when a crime sought to be prevented, as for example, the transfer of classified documents, actually occurs. The warrant is good, even if the crime does not occur, as long it was fairly probable. The Government still has to make the case beyond a reasonable doubt at the criminal trial. 20

Were Minimization Procedures Violated? What are the exceptions to sharing information? Crime and foreign intelligence information. The court found that the definition of foreign intelligence is very broad. What is really protected? Personal information not related to crime or foreign intelligence. The Court found, that any failures to minimize properly the electronic surveillance of the defendants were (i) inadvertent, (ii) disclosed to the FISC on discovery, and (iii) promptly rectified 21

What is a roving wiretap? A roving wiretap permits investigators to listen in on any phone a target might use. If the judge finds that the actions of the target of the application may have the effect of thwarting the ability of the investigators to identify a specific communications carrier, Internet service provider, or other person needed to assist in the effective and secret execution of the surveillance, the order may authorize such assistance from multiple parties. Tied to the person, not the device. 22

How was the pen register language modified after 9/11 to include email? dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, provided . . . that such information shall not include the contents of any communication. How might an automatic out of office message get you in trouble under this law? 23

Disposition - United States v. Rosen The US dismissed, under pressure from Israel. This left the issue of reporters vs. spies unresolved. 24

Post 9/11 FISA, LAW ENFORCEMENT, AND THE WALL 25

Who was Zacarias Moussaoui and why did he lead to the passage of the Patriot Act? The 20th hijacker. He was arrested before the attack and it was later found that his computer had info on it that might have lead to the prevention of the 9/11 attack. When FBI field agents in Minneapolis sought headquarters approval for a FISA search pre-attack, they were turned down, apparently because there was insufficient indication that Moussaoui was an agent of a foreign power. The field agents failed to persuade headquarters to open a criminal investigation that would have employed grand jury subpoenas and law enforcement warrants to examine Moussaoui s computer and telephone records. Apparently, this request was denied because senior FBI officials worried that an open criminal investigation might thwart a later FISA application by defeating the primary purpose requirement. 26

In re: Sealed Case No. 02-001, 02-002 (Foreign Intelligence Surveillance Court of Review) 310 F.3d 717 (2002) (FISC appeal) The Wall (between domestic law enforcement and national security) falls. This raises concerns about subterfuge searches and expansion of the national security state. 27

What is the "wall" that the FISC assumed existed? We think it fair to say, however, that the May 17 opinion of the FISA court does not clearly set forth the basis for its decision. It appears to proceed from the assumption that FISA constructed a barrier between counterintelligence/ intelligence officials and law enforcement officers in the Executive Branch indeed, it uses the word wall popularized by certain commentators (and journalists) to describe that supposed barrier. 28

Where did the FISC find the authority to enforce this wall? Instead the court relied for its imposition of the disputed restrictions on its statutory authority to approve minimization procedures designed to prevent the acquisition, retention, and dissemination within the government of material gathered in an electronic surveillance that is unnecessary to the government s need for foreign intelligence information. 29

The Patriot Act Encouraged Cooperation between Intelligence and Law Enforcement It added a provision allowing Federal officers who conduct electronic surveillance to acquire foreign intelligence information to consult with Federal law enforcement officers to coordinate efforts to investigate or protect against attack or other grave hostile acts, sabotage or international terrorism, or clandestine intelligence activities, by foreign powers or their agents. 30

How did the Patriot Act modify the purpose of FISA surveillance? National security must only be a significant purpose . How does this implicitly do away with the primary purpose test? Foreign intelligence can be a significant purpose, even if criminal investigation is a primary purpose. 31

Proving that the Purpose is Solely Criminal Investigation The better reading, it seems to us, excludes from the purpose of gaining foreign intelligence information a sole objective of criminal prosecution. Why would this be hard to prove in any case with a foreign connection, however tenuous? So long as the government entertains a realistic option of dealing with the agent other than through criminal prosecution, it satisfies the significant purpose test. 32

Who has the responsibility for reviewing the government purpose? It is up to the Director of the FBI, who typically certifies, to determine the government s national security purpose, as approved by the Attorney General or Deputy Attorney General. This is not a standard whose application the FISA court legitimately reviews by seeking to inquire into which Justice Department officials were instigators of an investigation. 33

What did the FISCR rule? Accordingly, we reverse the FISA court s orders in this case to the extent they imposed conditions on the grant of the government s applications, vacate the FISA court s Rule 11, and remand with instructions to grant the applications as submitted and proceed henceforth in accordance with this opinion. 34

Crossfire Hurricane Investigation 35

FISA Trends The 2020, 2021, and 2022 Annual Statistical Transparency Reports published by the Office of the Director of National Intelligence indicate that the use of FISA surveillance dropped precipitously in recent years, from 1,184 in calendar year 2018, to 907 in 2019, to 524 in 2020, to 430 in 2021. Do you think the close scrutiny of the FISA application process in the years following the 2016 election had anything to do with this trend? If so, might it reflect a recognition by the FBI that earlier use of FISA was too aggressive? Or might it be that investigations like the one by the Inspector General chilled agents use of FISA by making them more risk averse? Is there any way to know which explanation is more likely to be true? 36

CONGRESSIONAL AUTHORITY FOR FOREIGN INTELLIGENCE SURVEILLANCE SUMMARY OF BASIC PRINCIPLES 37

SUMMARY OF BASIC PRINCIPLES SUMMARY OF BASIC PRINCIPLES FISA was a compromise between the President s insistence on inherent constitutional authority to collect foreign intelligence and Congress s insistence on a judicial role. FISA avoided the question whether there is a foreign intelligence exception to the Fourth Amendment warrant requirement by authorizing a secret Article III court to approve foreign intelligence surveillance based upon a unique probable cause requirement. 38

SUMMARY OF BASIC PRINCIPLES SUMMARY OF BASIC PRINCIPLES Electronic surveillance pursuant to FISA must concern foreign intelligence and (with exceptions created by 2008 amendments discussed in the next chapter) must be conducted inside the United States. FISA therefore did not originally regulate surveillance outside the United States. 39

SUMMARY OF BASIC PRINCIPLES SUMMARY OF BASIC PRINCIPLES While a FISA order cannot be granted solely to collect criminal evidence of a non national security crime, it need only have a significant, and not sole or even primary, purpose of collecting foreign intelligence. 40

SUMMARY OF BASIC PRINCIPLES SUMMARY OF BASIC PRINCIPLES Instead of probable cause to believe that evidence of a crime will be collected, an application for a FISA order requires only a showing of probable cause to believe, inter alia, that a target is a foreign power or agent of a foreign power. 41

SUMMARY OF BASIC PRINCIPLES SUMMARY OF BASIC PRINCIPLES A FISA application also must describe minimization procedures to limit the collection, retention, and dissemination of nonpublic information typically information that was incidentally collected, like the innocent telephone conversation of a target s teenager. 42

SUMMARY OF BASIC PRINCIPLES SUMMARY OF BASIC PRINCIPLES FISA gives United States persons (citizens and permanent resident aliens) more protection than non-U.S. persons, in recognition of U.S. persons constitutional rights. Thus, the FISA probable cause standard is higher for U.S. persons, probable cause cannot be based solely on the basis of their First Amendment activities, and the application for surveillance of them must be not only complete, but also not clearly erroneous. 43

SUMMARY OF BASIC PRINCIPLES SUMMARY OF BASIC PRINCIPLES Core FISA procedures (as contrasted with certain kinds of bulk collection discussed in Chapter 24) have survived Article III, First Amendment, Fourth Amendment, Fifth Amendment, and Sixth Amendment challenges. 44