After President Trump announced he would veto any FISA reauthorization bill, without a full investigative review of prior FISA abuse so that legislation could be created specifically to fix the severe flaws in the process, House Speaker Nancy Pelosi has dropped the vote for FISA reauthorization:
WASHINGTON (Reuters) – The House of Representatives on Thursday dropped consideration of legislation that would have extended U.S. surveillance tools, after President Donald Trump threatened a veto and his fellow Republicans withdrew their support.
“The two-thirds of the Republican Party that voted for this bill in March have indicated they are going to vote against it now,” Representative Steny Hoyer said in a statement on Thursday, after a vote on the measure was unexpectedly postponed late on Wednesday.
House Speaker Nancy Pelosi sent a letter to members of the Democratic caucus saying she intends to hold negotiations with the Senate on a possible compromise bill that could be passed and sent to Trump. (read more)
A little background context is needed. In November of 2019 buried deep in the congressional budget Continuing Resolution (CR) was a short-term extension to reauthorize the FISA “business records provision”, the “roving wiretap” provision, the “lone wolf” provision, and the more controversial bulk metadata provisions [Call Detail Records (CDR)], all parts of the Patriot Act.
In Mid-March 2020 the Senate voted to reauthorize the expired FISA provisions with some modest modifications.
However, in late March the office of inspector general published a brutal interim memo highlighting continued abuses within the system.
Within the 17-page-memo the IG notifies Attorney General Bill Barr and FBI Director Chris Wray that all of the claimed FISA processes, in every FBI field office, are grossly deficient, and in most cases there is zero compliance with FISA standards. The IG memorandum was presented before the IG even looked at the specifics of the non-compliance.
This IG memo came out March 31st after the senate had voted to reauthorize the provisions and standards the IG reviewed. The House now holds the senate reauthorization bill, but obviously the FISA problems are bigger than addressed by the small fixes within the Senate bill.
President Trump is committed to seeing that FISA is not reauthorized without “significant” reform. Senator Rand Paul has proposed to significantly change the FISA process by forcing the DOJ, FBI and Intelligence Community to apply for search and surveillance warrants to Title-3 courts in order to access any NSA database containing private information of American citizens.
Rand Paul’s proposal seems like a good approach; however, the DOJ does not support having to go to a court every-time they “incidentally” capture records of Americans prior to being able to look at or utilize the results. It’s a complex issue but history has shown the inherent ‘honor system‘ within the functions of the process simply does not work.
Prior to the December 9, 2019, inspector general report on FISA abuse; and prior to the March 31st interim memo as the IG looks deeper into the FISA process; FISA Court judges Rosemary Collyer (declassified 2017) and James Boasberg (declassified 2019) both identified issues with the NSA bulk database collection program being exploited for unauthorized reasons. In the Obama-era this included political surveillance.
Americans were, and are, under surveillance as part of the process. The capture of all electronic metadata belonging to American citizens, in combination with the captured metadata of non-American persons, makes it almost impossible to review the totality of the database without infringing on the privacy rights of Americans.
For the past several years no corrective action taken by the intelligence community has improved the abuses outlined by the FISA court; the surveillance has only worsened.
The U.S. constitution’s fourth amendment is being violated by the continued abuse of bulk metadata collection, particularly when private contractors and government officials illegally access the system. The 2016 FISA review (Judge Collyer partly declassified in 2017) and the 2018 FISA review (Judge Boasberg partly declassified in 2019) both show ongoing and systematic wrongdoing despite all prior corrective action and promises.
Beyond the database search abuses, on the use of fully assembled FISA applications for surveillance warrants against American citizens, there are even more troubling findings. Below are the stunning top-lines identified by the March 2020 IG memo:
- The IG reviewed 29 FISA applications, surveillance warrants, used against U.S. persons.
- The 29 FISA applications were from eight different field offices.
- The FISA applications were from Oct/2014 through Sept/2019.
- All of the FISA applications reviewed were approved by the FISA court.
The ‘Woods File’ is the mandatory FBI evidence file that contains the documentary proof to verify all statements against U.S. persons that are contained in the FISA application. Remember, this is a secret court, the FISA applications result in secret surveillance and wiretaps against U.S. persons outside the fourth amendment.
♦ Within the 29 FISA applications reviewed, four were completely missing the Woods File. Meaning there was zero supportive evidence for any of the FBI claims against U.S. persons underpinning the FISA application. [ie. The FBI just made stuff up]
♦ Of the remaining 25 FISA applications, 100% of them, all of them, were materially deficient on the woods file requirement; and the average number of deficiencies per file was 20. Meaning an average of twenty direct statements against the target, supporting the purpose of the FISA application, sworn by the FBI affiant, were unsubstantiated. [The low was 5, the high was 63, the average per file was 20]
♦ Half of the FISA applications reviewed used Confidential Human Sources (CHS’s). The memo outlines that “many” of applications containing CHS claims had no supportive documentation attesting to the dependability of the CHS.
♦ Two of the 25 FISA applications reviewed had renewals; meaning the FISA applications were renewed to extended surveillance, wiretaps, etc. beyond the initial 90-days. None of the renewals had any re-verification. Both FISAs that used renewals were not compliant.
But wait… it gets worse.
The DOJ and FBI have an internal self-check mechanism. The DOJ National Security Division (DOJ-NSD) chief counsel, and the chief counsel for every FBI field office are required to conduct an “Accuracy Review” of selected FISA applications. One per field office (25 to 30 field offices),which are also sent to DOJ-NSD (main justice) for general counsel inspection.
Keep in mind, these “accuracy reviews” are known in advance, so the FBI has all the time in the world to select the best FISA file for review. Additionally, I surmise the OIG wanted to inspect the “accuracy review” FISA’s because they would show the best light on the overall system itself. The OIG was looking for the best, most compliant, product to report on.
However, when the OIG inspected 42 of these Accuracy Reviews, the IG identified that only three of them had accurately assembled documents (Woods File) supporting the application. The error rate within the files self-checked was over 93%.
So the best FBI files are selected to undergo the FBI and DOJ-NSD accuracy review. The accuracy review takes place by FBI legal counsel and DOJ-NSD legal counsel. However, the IG finds that only three FBI applications in the accuracy reviews were compliant.
The error rate in the files undertaken by the internal accuracy review was over 93% (3 compliant out of 42 reviewed). These were the FISA files with the greatest possibility of being accurate. That tells us how flawed the process has always been.