WASHINGTON (Feb. 3, 2018) – Yesterday, the House Intelligence Committee released a declassified memo relating to surveillance of a Trump advisor prior to the 2016 election. The true significance of the memo has already been lost in the noisy debate over Russian ties to the Trump administration. More importantly, the memo reveals that the U.S. surveillance state operates with virtually no accountability or oversight, and serves as a political tool for those in power.
This comes as no surprise to anybody who studies the United States surveillance apparatus. Edward Snowden gave us a peek behind the curtain when he released documents he obtained as an NSA contractor. But the technical nature of the Snowden revelations left most people overwhelmed. It was clear the NSA was overstepping its bounds, but it took a good bit of effort to understand what it all meant.
This memo makes several truths about surveillance starkly obvious.
The memo says the findings it reports “represent a troubling breakdown of legal processes established to protect the American people from abuses related to the FISA process.”
This is inherent in the nature of the FISA law.
The secret Foreign Intelligence Surveillance Court (FISC) oversees “foreign surveillance.” In order for agencies such as the NSA and FBI to spy on Americans, they must get a warrant from the FISC. But as the memo points out, the court can only base its decisions on the information it gets from the agency requesting the warrant. Ultimately, the court depends on complete and honest information from surveillance agencies.
“The public’s confidence in the integrity of the FISA process depends on the court’s ability to hold the government to the highest standard – particularly as it relates to surveillance of American citizens. However, the FISC’s rigor in protecting the rights of Americans … is necessarily dependent on the government’s production to the court of all material and relevant facts.”
The memo makes it sound like the “government” and the FISC are two separate entities. In fact, the judges who sit on the court are politically connected lawyers. The FISC doesn’t exactly operate as an objective third party. Nevertheless, even if we could trust the FISC as an unbiased, objective body committed to protecting our rights, this entire system of secret surveillance depends on the honesty and openness of spy agencies.
It should come as no surprise that as of 2016, the FISC had only denied 51 warrant requests – ever – since its establishment in 1979. Thirty-four of those denials came in a single year – 2016. To put that into perspective, the FISC approved 39,195 requests without modification. That means the court approves 99.998% of the warrant requests. It basically serves a rubber stamp for the FBI, the DOJ and the NSA.
The memo indicates that “material and relevant information was omitted” in the original FISC application to surveil an American citizen, and in the subsequent applications for renewal.
This could certainly explain the court’s high approval rate. In the case of former Trump advisor Carter Page, the FBI and DOJ clearly withheld information that would have increased the likelihood of the court rejecting the warrant request. The bulk of the memo is dedicated to making this case.
The memo reveals a rogue surveillance state. The “safeguards” built into the system are fundamentally flawed. The memo makes clear that an extensive U.S. surveillance apparatus is used for political purposes. It’s clear that the surveillance state operates with virtually no accountability or oversight. And it’s clear that even knowing this, the House Intelligence Committee allowed these surveillance powers to be renewed and expanded.
Last month, Congress reauthorized Sec. 702 of the FISA Amendments Act. This was the legal framework used to authorize the surveillance referenced in the memo. As Andrew Napolitano explained, “the FISA-created process permits a secret court in Washington to issue general warrants based on the government’s need to gather intelligence about national security from foreigners among us. It pretends that the standard is probable cause of foreign agency, but this has now morphed into the issuance of general warrants whenever the government wants them.”
Along with targeted warrants such as the one that authorized the feds to spy on Page, more general FISA warrants authorize government surveillance on all landlines, mobile devices and desktop computers in a given area. While the process was created to monitor foreign agents, it sweeps up reams of data belonging to Americans.
Before approving a six-year extension of Sec. 702, the House voted to kill an amendment that would have overhauled the surveillance program and addressed some privacy concerns. Provisions in the amendment would have required agents to get warrants in most cases before hunting for and reading Americans’ emails and other messages that get swept up under the program.
In fact, the Sec. 702 reauthorization actually codified into law broad interpretations of the act that federal spy agencies had concocted in order to expand their surveillance power. What were previously just the opinions of government lawyers used to expand FISA’s scope have now become the law of the land.
This is yet another indication we can’t count on Congress to limit its spy-programs.
The memo was available to members of the House Intelligence Committee prior to the vote to reauthorize Sec. 702. None of this information was made available to Congress at large. The 22-member intelligence committee decided to sit on it as Congress debated extending (and in fact expanding) FISA authority for six more years. News of the memo’s existence came out the day after Trump signed the reauthorization into law.
This is the real news in the memo. But instead, Americans will focus on political theater, and incessant finger-pointing and blame-gaming between Democrats and Republicans. You will note that the two parties managed to come together to expand the surveillance state. That’s telling.
We cannot depend on Congress to rein in the surveillance state. While the Trump administration feigns outrage over Obama spying, it is almost certainly engaged in the same thing.
We can’t say nobody ever warned us.
In 1975, Sen. Frank Church issued a poignant warning about the surveillance state on NBC Meet the Press, saying it created the potential for “total tyranny.”
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.
He wasn’t wrong.