With impeachment headlines absorbing most attention, there is a quiet background story happening in DC where re-authorization of the USA Freedom Act is needed prior to expiration on December 15th. Techno Fog points out the bulk NSA data collection and FISA(702) surveillance programs are part of this reauthorization.
Just yesterday, November 6th, the Senate Judiciary Committee held hearings on the reauthorization. “Senators expressed their displeasure Wednesday with the Trump administration’s inability to answer questions about the National Security Agency’s collection of data records” (link). Which begs the question:
Is the current Inspector General report on FISA abuse being delayed due to the need for congress to reauthorize the very same programs the IG is about to criticize?
For context to this question, and considering the potential for some surprising revelations within the IG report on FISA, it is worth noting the Office of the Director of National Intelligence held back the the findings of FISA Judge James Boasberg that strongly criticized the FISA-702 process for a year.
The Judge Boasberg report was written in September of 2018 but not released (redacted) until last month.
There is a serious problem here…
FISA Court judges Rosemary Collyer (declassified 2017) and James Boasberg (declassified 2019) both identified issues with the NSA database being exploited for unauthorized reasons. We have a large amount of supplemental research to see through most of Collyer’s report and we are now starting the same process for Boasberg. However, an alarming possibility makes it important to outline a rough draft of what appears present.
Initially when Collyer’s report was declassified in April 2017 we were able to start assembling additional circumstantial and direct evidence. Two years of releases allowed us to see a more detailed picture.
Additional documents, direct testimony from NSA Director Mike Rogers, and later connected material from court filings, classified releases and ODNI statements made the understanding much clearer. What became visible was a process of using the NSA database for political surveillance. [SEE HERE]
With the Boasberg report we do not yet have enough supportive material to identify specific purposes. However, directly from the report itself there is a lot of information that shows a continuum of database activity that did not stop after Collyer’s warnings, and the NSA promises. It seems, the political exploitation continues; and with that in mind some recent events are much more troubling.
Boasberg notes the “about” query option that NSA Director Mike Rogers halted, technically didn’t stop. Instead operators used the “to and from” option almost identically as the “about” queries for downstream data review and extraction. The FISA Appellate Court appointed amici curiae to review Boasberg’s opinion and reconcile counter claims by the FBI. Boasberg was never satisfied despite the FISC-R amicus assurances. His opinion reflects valid judicial cynicism within his reluctant re-authorization.
One of the weird aspects to both Collyer and Boasberg is that both FISC judges did not ever seek to ask the “why” question: why are all these unauthorized database searches taking place? Instead, both judges focus on process issues and technical procedural questions, seemingly from a position that all unauthorized searches were done without malicious intent.
Accepting that neither judge had the purpose of benefit to overlay any other information upon their FISA review, their lack of curiosity is not necessarily a flaw but rather a feature of a very compartmentalized problem.
Boasberg and Collyer are only looking at one set of data-points all centered around FISA(702) search queries. Additionally, the scale of overall annual database searches outlined by Boasberg extends well over three million queries by the FBI and thousands of anonymous users; and the oversight only covers a sub-set of around ten percent.
As a result of the number of users with database access; and as Boasberg notes in his declassified opinion there is no consistent application of audit-trails or audit-logs; and worse yet, users don’t have to explain “why”, so there’s no FISC digging into “why”; the process is a bureaucratic FUBAR from a compliance standpoint; perhaps that’s by design.
All of that said, and accepting the FISC review is not engaged in the ‘why’, here’s the part where seemingly disparate dots start to connect and things are concerning.
REMINDER from the Mueller Report:
My strong hunch is that behind this process we would find the reason why the ‘Steele Dossier” was so relevant to Mueller. You see, investigating the dossier made the 2017 Mueller investigation an extension of a 2016 counterintelligence investigation and not a criminal investigation (later, those were spun off).
By maintaining the counterintelligence process for Mueller, the FBI was able to continue exploiting the NSA database as a FISA(702) tool for their investigation. The foreign actors played a key role in this process. So long as the Mueller investigation was targeting foreign actors they could collect downstream evidence on the “702” (American persons) returns.
In essence, the “small group” could stretch the NSA database rules to conduct electronic warrantless searches and massive electronic surveillance on targets direct (“to/from”) and indirect (downstream).
The violations that Boasberg is identifying (March 2017 through March 2018) must also include FISA database searches conducted by Mueller’s FBI team. It is all within the same system of electronic surveillance. The pattern, frequency and specifics of the Boasberg report are identical to the 2017 Rosemary Collyer report. Same violations. Same processes.
Against what we see more visible every day; and thinking about how corrupt we already know the Mueller investigation to be; now consider that without going to federal courts to gain legal authority, warrants, taps etc…. using their database access Mueller’s team could continue to exploit the FISA(702) process.
They could gather material for their criminal cases through the NSA database and then transfer those results to their spun off prosecutions.
That’s why the Steele Dossier would be so important. The Dossier formed the basis to continue making the Mueller investigation a counterintelligence operation, Title-I authority. Without the Dossier creating the foreign construct, Mueller’s team would have had to follow Title-III.
There is a better than strong possibility the Mueller team monitored all of their targets, extracted the evidence they needed, transferred it to prosecutors and proceeded to construct cases. They didn’t need too much actual investigation because: (a) they knew the Russian-collusion/conspiracy was false; and (2) they could just access the NSA database and pull all the material they needed.
It would be good to know the abuses so corrective action could be taken.
The national security hawk in me says keep the bulk NSA collection and FISA but with better checks and balances. The libertarian in me says to scrap it altogether because of the way Obama and his praetorian guard abused it because there’s no guarantee it won’t happen again should another Obama end up in the WH.
Dust off nuke it from orbit, its the only way to be sure.
@another vet: The Obama administration showed us anything can be abused. Our system of government is dependent upon the good intentions of the administrators and when they want to abuse the system, there is little to stop them.