This is a little weedy, but it’s important….
In the second half of Devin Nunes interview with Maria Bartiromo today he was asked his thoughts about the FISA Court selecting David Kris as an FBI surveillance and compliance monitor. The issue is quite important because the FBI FISA reforms and promises are essentially meaningless without some form of structural review process.
However, the new 2020 FISC Presiding Judge James Boasberg selecting David Kris has been noted by several people as a rather weak effort on behalf of the court.
As an outcome of our former FISA-702 reviews CTH has an entirely different reason for questioning the selection of Kris; there’s much more substantive reasons to be alarmed about it; but first here’s the general consensus opposition:
WASHINGTON – The Foreign Intelligence Surveillance Court (FISC) has stunned court-watchers by selecting David Kris — a former Obama administration lawyer who has appeared on “The Rachel Maddow Show” and written extensively in support of the FBI’s surveillance practices on the left-wing blog Lawfare — to oversee the FBI’s implementation of reforms in the wake of a damning Department of Justice inspector general report last year.
[…] “Of all the people in the swamp … this is the guy that you come up with?” Nunes asked. “The guy that was accusing me of federal crimes? The guy that was defending the dirty cops at the FBI? … The court must be trying to abolish itself. There is long-term damage.”
President Trump then referenced Nunes’ interview with Bartiromo on Twitter on Sunday afternoon, calling Kris “highly controversial” and slamming the FISC’s decision. (read more)
There’s an aspect to the history of David Kris and Judge Boasberg that explains this selection…. It doesn’t justify it, but explains it. CTH first learned of Kris when researching who the government was using as Amici Curiae for FISC Reviews (FISC-R appeals).
You see, there’s a process when the FISA court denies the position of the government, for the feds to appeal the FISC decision. In essence if the FISA court defines activity by the government as a violation of the fourth amendment, the government sends representatives to argue “process issues” on behalf of the surveillance state. David Kris has been one of those Amici Curiae; and specifically Kris has worked to ameliorate Judge Boasberg before.
Judge Boasberg became the presiding FISC judge on January 1st of this year, replacing FISA Judge Rosemary Collyer.
In April 2017 the DNI released a FISA report written by Presiding Judge Rosemary Collery that showed massive abuse, via unauthorized searches of the NSA database, in the period of November 2015 through May 2016. Judge Collyer’s report specifically identified search query increases tied to the 2016 presidential primary. Two years of research identified this process as the DOJ/FBI and IC using the NSA database to query information related to political candidates, specifically Donald Trump.
When Judge Boasberg was given the similar assignment, to review the intelligence community use of the NSA database, essentially a FISA-702 compliance audit (2017 through March 2018), he wrote his findings in a report in October 2018.
Within Judge Boasberg’s review of the 2017 activity he outlined an identical set of FISA violations from within the FBI units and “contractors” as initially outlined by Judge Collyer a year earlier. Judge Boasberg wrote his opinion in October 2018 and that opinion was declassified last October 8th, 2019).
Boasberg’s review was 2017 through March 2018 [Main Link to All Legal Proceedings Here], written October 2018 and made public October 2019.
To counter the FISA-702 legal issues Judge Boasberg was identifying about the unlawful data exploitation and surveillance of U.S. persons (4th amendment violations), the government countered with an attempt to justify. This is the aforementioned appeal process known as the FISC-R. Who is the Amici Curiae attempting the justification?
Yup, David Kris. The level of back-and-forth govt. justification -vs- FISC argument within the database surveillance process was where we first saw Mr. Kris name surface.
In 2018, in response to Boasberg, the Government appealed the FISC’s deficiency finding related to the FBI’s procedures to the FISC-R which, after briefings and oral arguments by the Government and amici, issued a per curiam opinion on July 12, 2019.
Because the FISC-R’s conclusion regarding Section 702 required the Government to amend the FBI’s querying procedures, it declined to reach the issue of whether the FBI’s querying and minimization procedures complied with the requirements of FISA and the Fourth Amendment.
On September 4, 2019, the FISC approved the FBI’s amended querying procedures, explaining that the revisions remedy the deficiencies contained in the earlier procedures. Thus, the FISC held that the FBI’s minimization and querying procedures were consistent with the requirements of Section 702 and the Fourth Amendment. [Ruling]
Although the Government did not seek to resume FISA-702(16) “abouts” collection, the FISC, with assistance from amici, reviewed whether the “abouts” restrictions applied to any other types of Section 702 acquisitions currently being conducted. Essentially it was the job of David Kris to deal with the violations being outlined, and then find process arguments to convince the FISA court to keep letting the DOJ and FBI use the system.
It’s Kris’s job to manufacture the judicial plausible deniability the FISA Judges need to keep allowing the FISA process to exist.
Stop and read that again.
Even before Mr. Kris was given this new FISC assignment, it was already his job to manufacture process arguments, find obtuse angles to justify the procedures being used, and provide the FISA judges with the plausible deniability they need in order to keep rubber stamping the fourth amendment violations.
It’s a scheme. A legal game of whac-a-mole. Every time the DOJ and FBI violate the fourth amendment; and every time they are caught in a compliance audit; Kris comes into the picture as the ‘fixer’, with the job to keep the non-fixable system going.
How do we know these are not earnest procedural processes being refined? Because the exact same violations are found year after year, after year. Nothing is ever fixed; the judges point out the violations; the Amici promise new process fixes; and wash-rinse-repeat the next year…. and the next….. and the next.
Boasberg noted in his 2018 opinion 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 (David Kris) to review Boasberg’s opinion and reconcile counter claims by the FBI. Boasberg was never satisfied despite the FISC-R amicus assurances. Previously CTH said these opinions reflected valid judicial cynicism within a reluctant re-authorization…. However, after looking deeply at the last three annual FISC reports, it now appears the judges are only writing cynically – and are actually willfully participating in a process that abuses the fourth amendment.
One of the weird aspects to all of the FISC reports, and this extends to both Collyer and Boasberg, is that both presiding FISC judges never 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, likely purposefully, had no 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.
Yes, they’ve designed it that way.
We have to get the entire FISA-702 process stopped, and that includes using the FISA Court against U.S. citizens. Why? Because, as President Obama’s term highlighted, it’s a massive surveillance database that is being used to gather black-ops and political surveillance against our elected officials.
FISA-702, the entire process, needs to be eliminated. If the DOJ or FBI want to turn on a surveillance switch against an American person, let them go to a standard Title-3 judge and request a search warrant for it.