In his long career, Daniel Patrick Moynihan both investigated the federal government’s over-reliance on secrecy as a U.S. senator and analyzed its effects on the political health of our nation as a scholar. He came to the memorable conclusion that “secrecy is a form of government regulation.”
It is regulation, however, you will find nowhere in the Federal Register. By hiding government documents from the public, the government can use classification to hide federal rules, programs and outcomes. Derivative classification – the propagation of secrecy from document to document – expands and reinforces this culture of secrecy. Thankfully, an Obama-era rule gives us a tool, Executive Order 13526, to open a window and get a glimpse into this culture. On Dec. 29, 2009, President Obama signed this order to stem government’s mindless tendency toward secrecy.
PPSA is relying on the strength of that executive order today by filing a Freedom of Information Act (FOIA) request to the CIA, FBI, NSA, ODNI, Department of Justice, State Department, and National Archives and Records Administration. We are asking them to simply reveal any references to EO 13526 in their records since its adoption in 2009.
Months before issuing 13526, President Barack Obama wrote:
[M]y administration is committed to operating with an unprecedented level of openness. While the Government must be able to prevent the public disclosure of information where such disclosure would compromise the privacy of American citizens, national security, or other legitimate interests, a democratic government accountable to the people must be as transparent as possible and must not withhold information for self-serving reasons or simply to avoid embarrassment.
The culture of secrecy is with us despite the clear intent of President Obama’s executive order. In 2009, the U.S. government had almost 55 million classified documents. Five years later, despite EO 13526, there were 77.5 million decisions to classify information. Plus ça change.
But EO 13526 remains in effect. It prohibits classification to “conceal violations of law, inefficiency, or administrative error” or to “prevent embarrassment to a person, organization, or agency.” It also obligates each agency to create internal procedures to challenge improper classification decisions, with an explicit expectation that such procedures will be used. Since sections of EO 13526 impose affirmative checks on classification decisions, it is reasonable to expect citation of those sections to show up at least occasionally in intelligence community records.
So PPSA is relying on this executive order to ask alphabet intelligence agencies to produce records that mention EO 13526 and its subsections. PPSA notified the agencies we are prepared to pay for the costs of these materials. We’ve also helpfully steered the agencies to the National Declassification Center and other federal offices to expedite their search.
As a result of our FOIA request, we predict one of two things will happen:
There is a third possibility, of course – the agencies have never used secrecy to hide violations of the law, inefficiency, administrative error or embarrassment to a person, organization or agency … if you consider that a real possibility.
In April, the Foreign Intelligence Surveillance Court of Review (FISCR) published an opinion that set the civil liberties community on edge. It addressed whether it had jurisdiction to resolve several First Amendment claims seeking access to opinions of the Foreign Intelligence Surveillance Court (FISC).
FISCR acknowledged that civil liberties groups that brought suit had satisfied two of the three jurisdictional requirements. First, a lack of access to these opinions was unquestionably an injury that could be redressed by a court, making the case actionable and live. Second, the FISC withheld those opinions based on federal law. But FISCR found that the third needed category—that the issue must be authorized by a “jurisdictional statute”—was not satisfied.
Last week, FISC acted on this standard, rejecting requests for opinions regarding bulk data collection. In three cases brought by civil liberties organizations seeking access to unreleased opinions, FISC dismissed each motion for a lack of jurisdiction, notwithstanding the strength of the First Amendment claims of access.
“Orwellian” is a word that gets a lot of use these days, but when a court needs special permission to decide questions about its own internal procedures, that adjective certainly comes to mind. What’s next, a requirement for a specific grant of permission to decide what to order for lunch?
While some other court perhaps could rule on the issue, or not, the public should not have to scurry from court to court begging for basic information on what its government is up to. What can be done? Congress should step in to correct the situation and provide the express authority regarding FISC has held it lacks.
Congress can provide the American people with the means to hold the courts accountable by slightly but explicitly expanding FISC’s—and FISCR’s—jurisdiction to allow it to hear First Amendment right-of-access claims.
Of course, granting FISC jurisdiction to consider these questions would not resolve their merits. But FISC, like every federal court, would be free to determine—in each case—if maintaining the secrecy of its opinions would be the necessary, least-restrictive way of furthering the government’s national security interests.
Unless Congress amends the jurisdictional statutes, FISC and FISCR will be free to continue to dismiss even the most meritorious claims.
So Congress should fix this defect—after, all a right without remedy is no right at all.
PPSA Joins 23 Other Civil Liberties Groups Calling on Congressional Leaders to NOT Slip In Expired FISA Authorities in Intelligence Authorization
PPSA is proud to join 23 other civil liberties organizations including Demand Progress, ACLU, FreedomWorks and NAACP in calling on Congressional leaders to not include controversial, expired FISA authorities (like Section 215) in an Intelligence Authorization, Continuing Resolution of the federal budget or other must-pass legislation.
Despite repeated questioning by Members of Congress and the civil liberties community, the government won’t answer the most basic questions about the legal basis for surveillance and the current scope of its activities. For that reason, PPSA and its peer organizations object to renewing expired surveillance authorities in a backroom deal without debate.
PPSA reported earlier that the bipartisan team of Sens. Mike Lee and Patrick Leahy asked Attorney General Barr and Director of National Intelligence John Ratcliffe if the Executive Branch is relying on secret claims of “inherent executive power” to continue surveillance.
Both senators based this reasonable question on a larger reasonable question: What is the legal foundation for surveillance after the expiration in March of three statutory provisions, including Section 215, the “business records” provision?
These reasonable questions have yet to be answered.
Glimpses of the government’s secret activities flash by every now and then. Several weeks ago, the 9th Circuit Court of Appeals concluded that the National Security Agency’s earlier bulk telephone metadata program was unlawful and likely unconstitutional. The court also determined that government representatives had made untruthful assertions before Congress.
If intelligence and law enforcement agencies refuse to be forthright about the scope and legal predicate of their surveillance, we can only assume the worst about the potential for dragnet surveillance that would trash the Fourth Amendment.
In recent weeks, PPSA has joined other civil liberties organizations in asking the Department of Justice and intelligence agencies about the legal foundation for their surveillance now that Section 215 of the Patriot Act has expired.
In particular, we are concerned about claims from Sen. Richard Burr that the executive branch can take any surveillance action it deems necessary without Congressional approval under Executive Order 12333. This follows a long line of reasoning coming from the agencies going back to the George W. Bush administration that the government has an “inherent” surveillance authority.
With this in mind, PPSA today filed a Freedom of Information Act request with the Privacy and Civil Liberties Oversight Board (PCLOB) asking to reveal guidance materials and communications regarding 12333.
Over the course of a year, a growing stream of information has come to light about inaccuracies in FBI warrant applications before the Foreign Intelligence Surveillance Court (FISC). In March, FISC was so disturbed by such information that it ordered the Justice Department to take steps to ensure greater consistency and accuracy in its Foreign Intelligence Surveillance Act (FISA) applications and to report on the process every thirty days. Last week, FISC published the latest of these reports from the Justice Department.
We’ve previously addressed how the FBI often fails to follow its own internal accuracy procedures in surveillance requests, known as the Woods procedures. This latest update provides some insight into how the FBI is responding to that criticism.
First, the FBI is taking steps to “automate certain processes FBI personnel use to create accuracy sub-files.” The automation process would “enhance the accuracy and completeness of FISA applications” by allowing FBI employees “to package and export” the documents in a file to “other FBI personnel,” presumably reducing transmission error or omissions from the prior manual processes.
Second, the FBI is developing a new system, known as “the Bridge,” that will increase collaboration within the FBI, as well as between FBI and the DOJ Office of Intelligence. The Bridge will automatically cross-reference new data with data in FBI’s current case-management system, Sentinel.
Unfortunately, the Bridge will not be ready until at least the end of next year.
PPSA will continue to monitor the FBI’s progress as it seeks to regain the public’s—and FISC’s— trust following the mishaps and misdeeds of the Crossfire Hurricane investigation. The improvements it just reported, though minor, are steps in the right direction.
But, as we’ve said before, rules, regulations and procedures will only work if the FBI adheres to them. PPSA continues to advocate for passage of statutes that will buttress these internal improvements with the force of law.
You can read the Justice Department’s latest update here.
PPSA Appeals FBI Blanket Refusal to Release Documents on Congressional Surveillance Response “Suggestive of Something Sinister”
The Project for Privacy and Surveillance Accountability (PPSA) filed an appeal today challenging a blanket refusal by the FBI to reveal if it has surveilled anyone on a bipartisan list of 48 Members of Congress with oversight responsibility of intelligence agencies. Members included in this request range from Rep. Adam Schiff and Sen. Kamala Harris to Rep. Devin Nunes and Sen. Marco Rubio.
In a Freedom of Information Act (FOIA) filing dated January 27, 2020, PPSA specifically asked if current and past senators and House members have been “unmasked” – or had their identities revealed to the FBI from conversations with foreigners targeted for surveillance. PPSA also asked if these same individuals have had their names “upstreamed” – their identifies confirmed from communications gleaned from cables and switches that comprise the backbone of the internet.
“None of the explanations offered by the FBI for withholding this information hold water,” said Erik Jaffe, PPSA president. “We understand this is a sensitive topic, and we would accept necessary redactions of names and other identifying information if they are needed for reasons of security or privacy. But by refusing to reveal anything, the FBI leaves a shadow that is suggestive of something large and potentially sinister.”
The FBI rationalized its non-response response to PPSA’s request based on exemptions in FOIA law. “None of these claimed exemptions justify withholding responsive documents,” Jaffe said. “It is clear the agency’s blanket denial demonstrates a refusal to conduct an adequate search for responsive records.”
For example, the FBI cited FOIA Exemption 1 concerning materials specifically exempted by an executive order. The FBI did not, however, cite any executive order it purports to rely upon. It also ignored a D.C. Circuit requirement that an agency “must provide detailed and specific information demonstrating that material withheld is logically within the domain of the exemption claimed.”
The FBI cannot use national security concerns as an excuse to avoid revealing political targeting.
“The agency’s refusal even to search for responsive documents, especially in light of its failure to show that disclosure would risk damage to national security, has no benign interpretation,” Jaffe said. “The FBI cannot use legitimate but generic national security concerns as an excuse to avoid revealing specific political targeting by an intelligence agency.”
Another claimed exemption, FOIA Exemption 3, allows agency non-disclosure when the documents in question are specifically exempted from disclosure by a statute. But the statute the FBI cites, 50 U.S.C. § 3024(i)(1), instructs the Director of National Intelligence to prepare “intelligence products in such a way that source information is removed to allow for dissemination … in declassified form to the extent practicable.”
“If the ODNI says there’s not a problem with disclosure, how can the FBI say that there is?”
“This is not really a debatable point,” Jaffe said. He pointed to a May 25, 2020 letter from then Acting Director of National Intelligence, Richard Grenell to Sen. Mark Warner stating that “the decision to declassify the names of individuals who sought to unmask the identity of General Flynn poses absolutely no risk of compromise of either sources or methods.”
“If the Office of Director of National Intelligence says there’s not a problem with such disclosures, how can the FBI say that there is a problem here?” Jaffe asked. Concerning privacy issues in Exemptions 6 and 7(C), Jaffe said, “the FBI’s reasoning is risible.”
“Our requests concern elected public officials who either hold or held nationally prominent positions both as members of the United States legislative branch and as members of committees that had oversight on intelligence,” Jaffe said. “I am sure that when they read this, many current and former Members will be clamoring for answers.”
PPSA has filed FOIA requests with the FBI, CIA, NSA, ODNI, the Department of Justice and State Department to provide all documents, reports, memoranda, or communications regarding the unmasking―including all unmasking requests―and/or upstreaming of any person listed below from January 1, 2008 to January 15, 2020.
These Members Are:
Is FBI Surveillance Being Conducted Under Secret Law? PPSA Seeks Answers to Post-Section 215 FBI Surveillance
The Project for Privacy and Surveillance Accountability recently filed a Freedom of Information Act (FOIA) request asking the FBI to explain how it conducts surveillance now that Congress has allowed three significant legal authorities to expire.
In March, Congress allowed the expiration of Section 215 of the Patriot Act, the “business records” provision of FISA that governed the warrantless surveillance of a wide range of personal information held by businesses. To review such sensitive records – ranging from online searches to video from home security cameras – all the FBI had to do was to assert the elastic standard of a national security interest. Two other authorities – the roving wiretaps provision to track potential terrorists from one device to another, and the lone wolf provision to track individuals suspected of terrorist activities – also expired.
“With the lapse of these authorizations, the FBI no longer has the authority to conduct this surveillance,” said Gene Schaerr, PPSA general counsel. “Does that mean that such surveillance for new cases will no longer take place? Does it mean that the FBI asserts that this form of surveillance can be justified under a different legal authority? If so, what is it? Or is the FBI just barreling ahead, with no legal basis?”
In its FOIA request, PPSA is specifically requesting all written communications from FBI agents, officers and employees regarding:
“For all its flaws, Section 215 at least provided a legal basis for the FBI gaining access to our interactions with business,” Schaerr said. “The American people deserve to know what authority, if any, the FBI now uses for these kinds of investigations.”
The PPSA filing comes on the heels of a letter with Demand Progress and nine other civil liberties organizations asking if the government is secretly contorting the law to justify dragnet surveillance.
In late July, a letter from Senators Mike Lee, Republican from Utah, and Patrick Leahy, Democrat from Vermont, asked Attorney General William Barr and Director of National Intelligence John Ratcliffe to clarify the government’s theory of surveillance after the expiration of Section 215 authority.
The two senators noted that some in the executive branch had previously asserted an “inherent right,” perhaps under Executive Order 12333, to conduct surveillance independent of any statutory authorization. The questions posed by PPSA are aimed to ascertain whether such claimed rights are being exercised by the government.
“For a year, surveillance hawks told us that it was a vital matter of national security that these three authorities be reauthorized,” Schaerr said. “They are now silent. This silence is a strong indication that the government was either wrong then, or that it has moved on to a new legal theory to justify its actions. If this is so, the American people and Congress deserve to know the legal basis on which this surveillance is now being predicated. Otherwise, to withhold from the American people such a major revision of policy would amount to secret law.”
PPSA applauds John Durham, the U.S. Attorney tasked with investigating the origins of the Trump-Russia investigation, for achieving an important milestone in the guilty plea of former FBI lawyer Kevin Clinesmith.
During the FBI’s Trump-Russia investigation, Clinesmith told the Foreign Intelligence Surveillance Court (FISC) that Trump campaign advisor Carter Page was not a CIA source. This turned out to be a lie. To sell that lie, Clinesmith modified CIA emails and included those emails in a foreign intelligence surveillance application. Without a court-appointed privacy expert to fact-check the FBI, the FISC ultimately approved four such applications against Page.
Clinesmith recently pleaded guilty to making false statements to FISC. But Clinesmith’s lies went undiscovered for too long.
The FISC’s one-sided procedures for obtaining a warrant invite such abuses. In most instances, the FISC considers only the government’s application. Armed only with one side’s arguments, the FISC decides whether to grant applications implicating the privacy of targeted U.S. persons.
The Foreign Intelligence Surveillance Act, as amended, allows minimal oversight by allowing FISC to appoint “amici” (outside lawyers with privacy expertise) to review the government’s filings for accuracy and address any constitutional issues. The 2015 USA Freedom Act requires the FISC to appoint an amicus when an application “presents a novel or significant interpretation of the law” unless, in its discretion, the FISC finds that an amicus would be inappropriate. See: 50 U.S.C. §1803(i)(2)(A). It allows the FISC to appoint an amicus in undefined “appropriate” circumstances: Id. (i)(2)(B).
The result of such broad discretion is predictable. Although “Congress … has expressed a clear preference for greater amicus curiae involvement in certain types of FISC proceedings,” such involvement remains the exception.[i] Mandatory annual reports[ii] show how rare the appointment process is. In the five years since the USA Freedom Act, FISC has only appointed an amicus sixteen times!
In March, the bipartisan team of Senators Mike Lee and Patrick Leahy sought to amend the law to require further amicus involvement. The Lee/Leahy Amendments listed different circumstances where an amicus was required, such as where an application (1) raised “significant” First Amendment concerns or (2) involved:
Beyond these amicus amendments, Lee/Leahy also required all FISA applications to include:
Had Lee/Leahy applied to the Carter Page application, FISC would likely have appointed an amicus. Page, after all, was a 2016 Trump staffer, Lee/Leahy expressly provided amicus assistance in applications involving similarly situated workers. With the complete record, an amicus would likely have (1) flagged Clinesmith’s alterations, (2) saved FISC from granting four surveillance applications without cause, (3) protected Carter Page from becoming the public face of the Mueller investigation, and (4) preserved the FBI’s integrity.
The Carter Page saga serves as a warning about the dangers of an unaccountable executive. Congress should enact the Lee/Leahy Amendments to prevent such abuse again.
[i] Opinion and Order at 7, In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things/In re Motion in Opposition to Government’s Request to Resume Bulk Data Collection Under Patriot Act Section 215, No. BR 15-75 (June 29, 2015), https://www.fisc.uscourts.gov/sites/default/files/BR%2015-75%20Misc%2015-01%20Opinion%20and%20Order.pdf.
[ii] 2015 Report of the Director of the Administrative Office of the United States Courts, https://www.uscourts.gov/sites/default/files/fisc_annual_report_2015.pdf; 2016 Report of the Director of the Administrative Office of the United States Courts (Apr. 20, 2017), https://www.uscourts.gov/sites/default/files/ao_foreign_int_surveillance_court_annual_report_2016_final.pdf; 2017 Report of the Director of the Administrative Office of the United States Courts (Apr. 25, 2018), https://www.uscourts.gov/sites/default/files/ao_foreign_int_surveillance_court_annual_report_2017.pdf; 2018 Report of the Director of the Administrative Office of the United States Courts (Apr. 25, 2019), https://www.uscourts.gov/sites/default/files/fisc_annual_report_2018_0.pdf; 2019 Report of the Director of the Administrative Office of the United States Courts (Apr. 25, 2018), https://www.uscourts.gov/sites/default/files/ao_foreign_int_surveillance_court_annual_report_2017.pdf; 2019 Report of the Director of the Administrative Office of the United States Courts (Apr. 27, 2020), https://www.uscourts.gov/sites/default/files/fisc_annual_report_2019_0.pdf.
Attorney General William Barr announced significant reforms to the process for filing FISA applications that ensure their accuracy, provide needed protections to elected officials and federal election campaigns, and establish an FBI Office of Internal Auditing for in-house oversight.
“These changes to FBI policy that these memoranda introduce are welcome and long overdue,” said Gene Schaerr, PPSA general counsel. “They also provide strong guidance for statutory reforms along similar lines.”
FISA Application Accuracy
In December 2019, the Department of Justice Inspector General released a scathing report addressing the Crossfire Hurricane investigation. That report highlighted both inaccuracies in FISA applications and the FBI’s systemic failure to follow its own protocols for ensuring accuracy, known as Woods procedures. With today’s changes, Barr has required that all applications be reviewed by “relevant FBI personnel” for accuracy and that the “findings of these reviews” be reported to the relevant attorney from the National Security Division Office of Intelligence.
Even with this further oversight, the Barr memorandum recognizes that mistakes happen. To that end, it mandates that if, after filing a FISA application, the FBI identifies a “misstatement or omission of material fact,” it must “immediately” report to both the FISC and the National Security Division. These additional steps will increase the FBI’s accountability and further protect the privacy rights of all U.S. persons.
Surveillance of elected Officials or Election Campaigns
The well-documented surveillance of the Trump campaign in 2016 gave the American people first-hand knowledge into how the intelligence agencies can manipulate FISA for political reasons or gain. The Barr memoranda introduce new protocols to guarantee that if an elected official or campaign must be surveilled, the surveillance will be “justified, non-partisan, and based on full and complete information.”
The new procedures require either the Assistant Attorney General for National Security or the FBI director take extra steps—including “conducting a defensive briefing” or certifying in writing why a briefing is not appropriate—to ensure the accuracy and necessity of such applications.
Recognizing that these applications are incredibly sensitive—particularly following the Carter Page incident— the Barr memoranda also limits their scope. In the future, each application must contain a statement about why the application is necessary and whether “less intrusive investigative procedures have been tried and failed” or would be “unlikely to succeed if tried.” Additionally, the FBI is prohibited from filing FISA applications related to elected officials or campaigns that will last “more than 60 days,” and is now required to report the investigation’s progress to FISC every 30 days.
The Office of Internal Auditing
Barr also authorized the FBI to create an Office of Internal Auditing, “headed by a senior FBI official” to “ensure that rigorous and robust auditing … is carried out.” This office will be tasked with developing “compliance and oversight mechanisms” to guarantee that FBI protocol is followed and to conduct audits of (1) the FBI’s national security activities; (2) its use of National Security Letters; (3) its compliance with FISA and FISC orders; and (4) its FISA applications. Additionally, the office will ensure that “FISA minimization, targeting, and querying procedures” are adequately followed and establish “remediation measures” for noncompliance with FBI protocol.
“Recent examples of the FBI’s noncompliance with preexisting FBI protocol have proven that these reforms are important and necessary,” Gene Schaerr said. “We commend the Attorney General for taking the steps in his power to ensure that the FBI will be more truthful and more accountable.”
Schaerr further noted that these reforms, significant as they are, do not reduce the need for legislative reform: “Without a statute, a future attorney general could reverse the important steps that Barr has taken,” Schaerr said. “Worse still, the FBI’s prior systemic failure to follow its own Woods procedures show that internal policies can be abused or disregarded without a clear congressional mandate. To guarantee that these reforms continue to bind the FBI in the future, they should be codified in appropriate legislation. We hope the Attorney General will support such an effort.”
You can read both memoranda here:
(1) Memo on Supplemental Reforms to Enhance Compliance, Oversight, and Accountability with Respect to Certain Foreign Intelligence Activities of the FBI and
(2) Memo on Augmenting the Internal Compliance Functions of the FBI.
PPSA joined ten other civil liberties organizations alerting the leadership of the U.S. House and Senate and their judiciary committees about “alarming statements and actions” suggesting the federal government is secretly conducting mass, dragnet surveillance of the internet activity of all people within the United States.
“The statements of the intelligence community’s defenders reveal the outlines of something potentially big, dark and secret,” said Gene Schaerr, general counsel of PPSA. “If the government doesn’t respond to our query, Americans will have no other choice but to assume they’re engaged in gross violations of our Fourth Amendment rights.”
Sean Vitka, senior policy counsel at Demand Progress, told Gizmodo that he believes that Adam Schiff, chair of the House Permanent Select Committee on Intelligence, reworked the language in a recent reform bill that would actually “allow for domestic surveillance on everybody.”
“After an intense lobbying campaign by congressional champions of the intelligence community to reauthorize Section 215, they have fallen mysteriously quiet and apparently satisfied,” Schaerr said. “This alone should arouse suspicion.”
Suspicions were initially raised when the former chair of the Senate Select Committee on Intelligence, Richard Burr, speaking on the Senate floor on March 12, claimed that an executive order (EO 12333) gives the president surveillance authority “without Congress’s permission, with no guardrails.”
On May 26, Charles Savage of The New York Times reported:
“… Stressing the continued need to investigate foreign threats, [Schiff] described the compromise as banning the use of such orders ‘to seek to obtain’ an American’s internet information.
“That formulation left open the possibility of interpreting the potential new law as banning only deliberate attempts to collect an American’s data, leaving the FBI free to ask for lists of all visitors to websites despite the risk that the list may turn out to incidentally include some Americans.”
The letter from PPSA, Demand Progress and other organizations states: “[T]he interpretation Chairman Schiff gave to the Times suggests the government may have secretly contorted the law to justify dragnet surveillance of the internet activity of people in the United States, regardless of their United States personhood.”
The group’s letter further states: “Treating domestic information and identifiers as presumptively foreign or as presumptively not belonging to a United States person would obliterate critical protections carefully negotiated by Congress to protect Americans. It would also – once again – embody a reprehensible abuse of the government’s surveillance powers.”
“We’ve seen such abuses before, beginning with a Drug Enforcement Administration bulk collection program that operated without scrutiny for twenty years,” Schaerr said. “Under an NSA program, Stellarwind, the government asserted a right to conduct mass surveillance without a warrant. They did so for almost a decade. This was a lawless violation that ignored both FISA and the Constitution.
“The American people deserve to know the basis on which federal surveillance is being conducted, and whether or not dragnets have returned,” Schaerr said. “If the government does not answer, PPSA will pry open the answers with FOIA requests and, if necessary, lawsuits.”
Other organizations that signed the letter include:
Americans for Prosperity
Demand Progress Education Fund
Defending Rights & Dissent
Due Process Institute
Fight for the Future
Free Press Action
Restore the Fourth