The Coming Battle Over Surveillance

As mystery continues to swirl around the February resignation of General Mike Flynn, President Trump’s first national security adviser, an already-contentious government program that monitors terrorists and helps disrupt their plots is in trouble.

How Flynn’s conversations with the Russian ambassador were intercepted is not yet known. But some Republican lawmakers have pointed to potential abuse of the 1978 Foreign Intelligence Surveillance Act (FISA). Chairman of the House Intelligence Committee Devin Nunes, whose committee is investigating Russian election interference, suggested in February that Obama holdovers were behind the leaks that precipitated Flynn’s resignation.

Nunes’s committee wants to know how the general’s calls were obtained and who made the decision to expose his name, which typically would have been redacted, in the transcripts of the calls. “I have been very clear about my concern about .  .  . the incidental collection on General Flynn, how that was put into a product, how it was unmasked, how it was leaked to the public,” Nunes told reporters in March. “Several crimes have been committed here.”

That controversy and others have spooked surveillance-weary Republicans ahead of the expiration of FISA Section 702, a program many officials and experts say is critical to U.S. counterterrorism efforts.

“There’s always been concern about civil liberties,” Nunes told The Weekly Standard. “At this point I just think there’s going to be a lot of concern until we can do our investigation and make sure there were no abuses of FISA .  .  . or anything else.”

Other triggers for surveillance concerns include the president’s allegation that the Obama administration “tapped” him before the election. Kentucky senator Rand Paul, who has long pushed to curb surveillance, said Trump was probably not the target of direct surveillance. But, he said, the president’s allegation revives the issue of potential abuses that civil liberties advocates have warned about for years.

“I doubt that Trump was a target directly of any kind of eavesdropping, but I am not saying it didn’t happen. I think there’s a very good chance it does,” Paul said on Face the Nation. “The FISA court, through Section 702, wiretaps foreigners and then listens to Americans.”

“They are not targeting Americans,” he said. “They are targeting foreigners. But they are doing it purposefully to get to Americans.”

Perhaps so, but Paul Rosenzweig, the founder of a homeland security consulting firm and a former Department of Homeland Security official, says there is no proof of Paul’s latter allegation. “Deliberately targeting Americans through a subterfuge, that is, by targeting foreign targets in order to collect purposefully against an American, is already illegal and, in fact, a crime,” Rosenzweig said. “There is, as far as I’m aware, virtually no evidence in any of the investigations .  .  . that have become public of any instances in which anybody has done that on purpose.”

FISA Section 702, enacted in 2008 and renewed in 2012, lapses this December. The program allows for foreign intelligence collection under a set of strict conditions: The target must be a non-U.S. person, located overseas, and likely to communicate foreign intelligence information.

Top Republican lawmakers, including Nunes and his Senate counterpart Richard Burr, chairman of the Intelligence Committee, support 702 reauthorization. But a number of other Republicans are worried about the potential abuses noted by Paul.

For critics of 702, the main concerns involve “incidental collection”—when a foreign target under surveillance communicates with a non-targeted U.S. person, whose conversations or texts or emails are thereby collected. The Privacy and Civil Liberties Oversight Board (PCLOB), an independent executive agency, conducted an in-depth 2014 review that illuminated many previously obscure features of 702. The board noted that incidental collection has allowed law enforcement agencies to track domestic terror plots through foreign links.

“And indeed, where the program has directly led to the discovery and disruption of terrorist plots, it has sometimes done so by helping to discover previously unknown operatives in the United States through their communications with terrorism suspects located abroad,” the report reads.

Intelligence collection under 702 is a multi-step process with oversight from all three branches of government. As a prerequisite for collection, the attorney general and director of national intelligence make yearly certifications identifying topics for intelligence collection, such as “the acquisition of weapons of mass destruction,” per the PCLOB. The FISA court—consisting of 11 federal judges appointed by the chief justice of the Supreme Court—reviews the certifications as well as targeting and minimization procedures.

Targeting procedures ensure that the individual subject to collection is a non-U.S. person outside the United States who will communicate or receive the sort of intelligence covered in the certifications. Though lawmakers raise alarms about so-called reverse targeting, which is targeting a foreign person with the intent of collecting information on a U.S. person, rigorous oversight makes reverse targeting difficult to execute, according to April Doss, a former NSA lawyer. “It would be very hard for somebody to task a foreign selector for the purpose of collecting U.S. communications without it getting caught,” Doss said.

There are “multiple steps of review at the time of making the targeting decision, and it requires approval by more than one person,” she said. “It also goes through after-the-fact scrutiny by the Department of Justice and the office of the director of national intelligence.”

Minimization procedures govern the collection, retention, and use of communications. These include special protections for U.S. persons. The National Security Agency, for example, often redacts the identity of U.S. persons when it shares information outside the agency. According to Doss, “The minimization procedures do allow reporting that includes a U.S. person’s name in some circumstances, specifically where the identity of the person is necessary to understand or assess the intelligence.”

The care normally taken to mask U.S. person information makes the Flynn case all the more troubling, a surveillance expert told TWS. “Information about Americans collected under foreign intelligence surveillance authorities is considered the most sensitive type of information that you can collect, and for obvious reasons,” said Adam Klein, a senior fellow at the Center for a New American Security. “It’s not collected under a criminal warrant, the purpose is to surveil foreigners, and we treat the U.S. person information that gets collected almost like it’s kryptonite.”

Minimization procedures, especially those that oversee retention and use of information, are another area where Republican concern is growing. Texas congressman Ted Poe, a member of the House Judiciary Committee, has objected to the procedures governing the use of a U.S. person’s information, acquired via 702 and discovered in an agency database, as evidence for an unrelated crime. He said he would not vote to reauthorize the 702 program unless it requires that a traditional warrant be obtained before such information can be used.

“We don’t want the government taking information on a bad guy and then going through it and finding information on Americans,” he said. “Use the constitutional process and don’t use the FISA legislation as a subterfuge for searching Americans.”

The Flynn leaks heightened his concern. “If there were abuses on that case, there can be abuses on any American citizen,” he said. “All these leaks that are coming from whatever source have just made me more passionate about protecting the right of privacy of Americans,” Poe added.

The ability to query data for certain terms, such as U.S.-person identifiers, varies by agency, and is limited with respect to purposes for the query, April Doss said. Only specially trained agents can view raw 702 data. “Queries have to be for the purpose of finding foreign intelligence information,” Doss said. “If there’s a communication between a foreign target and a U.S. person that is completely irrelevant to anything, it’s unlikely the analyst is ever going to see that communication.” Moreover, “there always has to be a foreign intelligence purpose for running the query. Queries are audited. There’s logs that show who ran what queries.”

FBI access to 702 data has given civil liberties advocates the most pause, because the agency conducts law enforcement investigations unrelated to national security. Specially trained FBI agents can query FBI databases, at least one of which contains a subset of 702-acquired information, “to find and extract” both “foreign intelligence information” and “evidence of a crime,” according to the PCLOB.

Agents routinely conduct queries as part of an investigation. The FBI told the PCLOB that it is “extremely unlikely” that a crime-related search would turn up 702 data. And such queries are relatively nonintrusive, according to Paul Rosenzweig. “In general, querying existing government databases of information that’s already been collected is one of the least intrusive things that we could do,” he said.

Rosenzweig cautions against dividing foreign intelligence information and non-national-security criminal information. “That’s re-creating the same type of artificial walls between intelligence collection and criminality that were identified by the 9/11 Commission as part and parcel of some of the reasons behind our failure to connect the dots in 9/11,” he said.

Other Judiciary Committee members also said they took issue with features of 702. “It needs to be reauthorized but with major reforms,” Idaho congressman Raúl Labrador, who voted for 2012 reauthorization, told TWS. “We’re going to go through a robust committee process. We have plenty of Republicans that want the 702 program to be reformed.”

“The Flynn leaks actually just confirmed the issues that I’ve had with the program, that you can use the program to attack your political opponents,” he said.

California congressman Darrell Issa, who voted for reauthorization in 2012, said he has doubts about current minimization procedures and government access to information collected via 702. “In its current form, I don’t believe we have enough protections, nor have we had enough transparency,” Issa told me. “I’m currently not supportive of reauthorizing 702 based on what I’ve been allowed to see so far.”

The possibility of reverse targeting in Flynn’s case contributes to unease over 702, Issa said. “It’s playing into the American people’s concerns that either it was a 702 reverse intercept or it could have been pursuant to some other warrant, but we don’t know,” he said.

Experts and intelligence officials under both Republican and Democratic administrations have described FISA Section 702 as critical for counterterrorism. The program, they say, grants the government flexibility to discover previously unknown terrorist operatives, better understand how terrorist networks operate, and disrupt their plots at home and abroad. More than a quarter of the NSA’s international terrorism reports “include information based in whole or in part on Section 702 collection,” the PCLOB reported.

Still, lawmakers have long pressed for a broad estimate of how many Americans have had their communications captured via incidental collection. That figure is hard to obtain, in part because the collected communications do not explicitly list nationality.

“Nobody knows precisely what the volume of incidental collection is,” said Klein of the Center for a New American Security. “When you have an email, you see the email addresses, you don’t necessarily know what the nationality of the people communicating is.”

Klein and other experts have called for continued efforts at greater transparency about the volume of incidental collection, as well as greater detail about the FBI’s queries for U.S.-person identifiers.

“To the extent that you want to reform the program, you want to do it in a way that doesn’t damage its value for counterterrorism and other intelligence purposes,” Klein said. “The focus should be on transparency and stronger accountability, stronger oversight, rather than taking away tools that the intelligence community needs to keep us safe.”

Jenna Lifhits is a reporter at The Weekly Standard.

This post originally appeared on Weekly Standard

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