ODNI just released a FISA Court opinion from Dec. 2019 approving Section 702 collection for another year. The opinion reveals multiple violations by the FBI, NSA, and CIA of the rules that are designed to protect Americans’ constitutional rights. That should be shocking… 1/17
…but here’s the thing: we’ve seen this opinion a dozen times. The government comes before the FISA Court and details all of its violations. The court lightly chides the government for both the violations and for the delay in reporting them… 2/17
…it then grants the government’s request to lift or weaken the rules – sometimes the very ones the government has broken. And it concludes that the program is constitutional despite systemic non-compliance with the rules that supposedly render it constitutional. 3/17
What would it take for the FISA Court to say no? In this case, its lenience is even more inexplicable given that the opinion was issued shortly after the government reported submitting FISA applications riddled with errors and omissions in the Carter Page investigation. 4/17
In agreeing to weaken the rules, the FISA Court repeatedly says (roughly) “we’re giving you some leash here, but we know you won’t violate our trust.” Did the Court suddenly forget the botched Page applications, or for that matter the decade-long pattern of non-compliance? 5/17
Let’s turn to the violations themselves. The opinion details so many, I can’t fit them all in a tweet thread. So I’ll just pick my top three. 6/17 intelligence.gov/assets/documen…
Leading the list: NSA agents decided not to comply with a court-ordered rule requiring them to use certain technical methods to make sure they’re not collecting domestic communications. Following rule, the agents decided, would cause them to lose foreign intelligence… 7/17
…so they didn’t follow it. When the time came to apply for reauthorization, the government requested that the Court get rid of the rule. The Court refused and sanctioned the government for its actions. Just kidding! The Court granted the government’s request. 8/17
BTW, the opinion cites a FISA Court order from October 2019 that apparently discusses this incident. It wasn’t made public because compliance issues aren’t “significant interpretations of law.” It’s clear the USA FREEDOM Act’s disclosure requirement didn’t go far enough. 9/17
The Dec. 2019 opinion clearly does contain significant interpretations of law, which is why ODNI released it. But that also means the FISA Court should have appointed an amicus. It didn’t. Another way in which the USA FREEDOM Act hasn’t worked as intended. 10/17
Back to the violations. Some background for the next one: An October 2018 FISA Court decision found that the FBI, in a "large number" of cases, violated the rule that U.S. person queries must be reasonably likely to return foreign intelligence or evidence of a crime. 11/17
According to the Dec. 2019 opinion, “there still appear to be widespread violations of the querying standard by the FBI.” The list of violations compiled by the FISC this time includes (among others) queries of college students participating in a “Collegiate Academy”… 12/17
…queries of police officer candidates, and one case in which the FBI ran *16,000* USP queries (the reason is redacted), of which only 7 were justified. The Court’s response? The FBI just needs a bit more time to get its act together. It’s only been a decade after all. 13/17
Next up: In 2018, Congress amended Section 702 to require FBI agents to get a court order before accessing Americans’ communications in certain cases. You know what’s coming… the FBI didn’t get court orders in these cases. EVER. 14/17
To be clear, this isn’t just a violation of agency rules, or even a court order. This is a systemic practice of violating THE LAW as duly enacted by Congress and signed by the president. Apparently, though, the FBI is making efforts to improve compliance, so all is well. 15/17
The opinion’s conclusion: “[T]he Court finds that the proposed procedures, as reasonably expected to be implemented, comply with applicable statutory and Fourth Amendment requirements.” 16/17
Hey FISA Court: If you truly expect that the procedures will be implemented in a way that comports with the law, I’ve got something you should read. It’s here: intelligence.gov/assets/documen… 17/17
