 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 FreedomWorks Restore the Fourth X-Lab PPSA today cited a recent admission by the Office of the Director of National Intelligence (ODNI) to demand disclosure by that agency on whether or not the intelligence community has been surveilling past and current Senators and U.S. House Members.
On Jan. 28, PPSA had filed a Freedom of Information Act (FOIA) request to ODNI, asking it to reveal whether U.S. intelligence has unmasked the identities of current and past Members of Congress known to have been caught up in foreign surveillance, and whether the names of these members were searched through ODNI databases (a practice known as “upstreaming”). The request covered 48 current and former Members in both parties and their potential surveillance from Jan. 1, 2008 to Jan. 15, 2020. On Feb. 4, ODNI summarily denied PPSA’s request with a “Glomar response” (neither confirming nor denying the existence of such records) because it said an answer “could reveal sources and methods information.” PPSA today supplemented its appeal of that denial, pointing to a recent admission by former Acting Director of National Intelligence Richard Grenell. One day after receiving a letter from several U.S. Senators, Grenell disclosed a list of officials who might have been involved in the unmasking of former National Security Advisor Michael Flynn. On May 25, in a piquant letter to Sen. Mark Warner (D-VA), Vice Chairman of the Senate Select Committee on Intelligence, Grenell wrote: “As you well know, 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 that is true of General Flynn,” said PPSA’s general counsel Gene Schaerr, “then it’s also true of the Senators and Congressmen who we believe were unmasked by the intelligence community.” Schaerr added, “Thanks to the forthright statements of former Acting Director Grenell, we now know that the ODNI’s denial in our case was not to protect intelligence sources or methods. Is this denial designed instead to protect one or more agencies from embarrassment or even from highlighting a violation of the law?” PPSA will continue to report responses from ODNI concerning this FOIA request. Two Senators Ask Barr About Potential For “Fourth Amendment Violations at Tremendous Scale”7/21/2020
 Does Congress pass laws so it can provide guardrails for government behavior, or are these laws just window dressing to hide government’s lawless actions?
This is the essence of what two senators, Mike Lee, Republican of Utah, and Patrick Leahy, Democrat of Vermont, are getting at in a series of questions they put in a letter today to Attorney General William Barr. A little background: On March 15, Section 215 of the Patriot Act – which allows for the surveillance of Americans’ business records (revealing our every action and belief) – expired. As a result, the executive branch is limited to conducting surveillance under pre-Patriot Act provisions. Sens. Lee and Leahy had proposed an amendment that aimed to use independent, third-party oversight to curtail abuse of the Foreign Intelligence Surveillance Act – which was meant to surveil potential terrorists and foreign spies, but in fact was used to spy on Carter Page and probably other Americans. This Lee-Leahy Amendment overwhelmingly passed the Senate, but was scuttled along with other reform measures in the House. Now, officially, the practices allowed under Section 215 are no longer allowed … but unofficially? We got a glimpse of the truth when, just before Lee-Leahy passed by a vote of 80-16, then-Senate Intelligence Chair Richard Burr asserted, that under Executive Order 12333, the president can do pretty much anything he wants in surveillance “without Congress’s permission, without guardrails.” At the time, this was seen as hyperbole by a champion of the intelligence community. Up until the expiration of Section 215, surveillance advocates had strenuously advocated the renewal of 215 as an urgent matter of national security. Now … crickets. Does the silence of surveillance hawks mean that the intelligence community has stretched other authorities to cover surveillance actions once governed by 215? Are they even acting under any law whatsoever? To get at the bottom of this, Sens. Lee and Leahy are asking Barr if the executive branch is secretly relying on an “alleged inherent power to continue its intelligence collection efforts without congressional authorization and outside of the statutory framework.” Executive Order 12333, issued in 1981, set out the powers and organization of the intelligence agencies. The senators are now asking how generously the Department of Justice interprets this executive order. Does DOJ consider “domestic records surveillance and surveillance involving records collection from domestic records holders lawful when conducted in the absence of statutory authority”? The senators also asked Attorney General Barr to:
They also asked Barr to reveal if the government is using the power of the purse to simply purchase our private information from data brokers in circumstances that would have required a court order under Section 215. Candid answers to the queries of these two senators might amount to “a system of surveillance with no congressional oversight potentially resulting in programmatic Fourth Amendment violations at tremendous scale.” So what’s the likeliest reply to this letter? More crickets. PPSA Asks Intel Chief, U.S. Attorney, If Unmasking Illegally Used to Spy on Political Opponents6/25/2020
[i] Eli Lake, Top Obama Adviser Sought Names of Trump Associates in Intel, Bloomberg (April 3, 2019), https://www.bloomberg.com/opinion/articles/2017-04-03/top-obama-adviser-sought-names-of-trump-associates-in-intel/.
[ii] Eli Lake, Top Obama Adviser Sought Names of Trump Associates in Intel, Bloomberg (April 3, 2019), https://www.bloomberg.com/opinion/articles/2017-04-03/top-obama-adviser-sought-names-of-trump-associates-in-intel. [iii] Richard Pollock, Former U.S. Attorney: Susan Rice ordered spy agencies to produce detailed spreadsheets involving Trump, Daily Caller, April 3, 2017, http://dailycaller.com/2017/04/03/susan-rice-ordered-spy-agencies-to-produce-detailed-spreadsheets-involving-trump/ [iv] See Letter from Chairman Devin Nunes to Dan Coats, Director of National Intelligence, July 27, 2017, at 2. [v] Bret Baier and Catherine Herridge, Samantha Power sought to unmask Americans on almost daily basis, sources say, Fox News (Sep. 21, 2017), http://www.foxnews.com/politics/2017/09/20/samantha-power-sought-to-unmask-americans-on-almost-daily-basis-sources-say.html. [vi] See Exhibit A, Chairman Nunes Comments on Incidental Collection of Trump Associates, Mar. 22, 2017, archived at: https://web.archive.org/web/20170829052809/https://intelligence.house.gov/ news/documentsingle.aspx?DocumentID=774. [vii] Id.  Yesterday’s failure of the Senate-amended reauthorization of Section 215 of the Patriot Act is on balance a win for Americans’ privacy—and it augurs even greater privacy protections in the future.
First, the debate over that reauthorization has moved the entire discussion over the Foreign Intelligence Surveillance Act (FISA), of which Section 215 is a part, toward greater protection for privacy: The reauthorization bill failed in the House because of opposition from the President—but not on the grounds, as the Justice Department complained, that it placed too many constraints on FBI surveillance. The President’s objection—which carried the day among House Republicans—was that the reauthorization bill didn’t go far enough in protecting Americans’ privacy. This unprecedented failure to reauthorize a portion of FISA on the grounds that it doesn’t adequately protect Americans’ privacy is itself a significant win—and will color the debate both in and on the House-Senate conference that the House has now requested. Second, the practical result of the failed reauthorization may well be the death knell of Section 215 as we know it. When it was in effect, that provision authorized the FBI to surveil sensitive “business records” containing confidential information about Americans—but without a probable-cause warrant. Echoing the Fourth Amendment, the President’s main ground for opposing reauthorization was that “warrantless surveillance of Americans is wrong”—which is exactly what Section 215 did. So the Administration will be hard-pressed to now support reauthorization of that provision, at least in its current form, in a House-Senate conference or otherwise. In short, given the President’s rationale for opposing the reauthorization, now apparently accepted by House Republicans, and given similar views among progressive Democrats, there is now a good prospect that Section 215 will never be resurrected, at least without a true warrant requirement. That will be an enormous win for privacy—and for the Fourth Amendment. Third, the overwhelming 77-19 bipartisan Senate vote for the Lee-Leahy Amendment—and the initial strong support for that provision in the House—provides a baseline for all future FISA reforms. That amendment would reform the process by which the FISA court considers sensitive intelligence agency requests for surveillance of Americans – by providing for the appointment of a legal expert to advocate for privacy. That amendment should and likely will be a condition of any reauthorization of any expiring FISA authorities, including any version of Section 215 adopted in any House-Senate conference. To be sure, we would have preferred that the Lee-Leahy reforms be adopted and immediately applied to all FISA court proceedings. But on balance, the permanent expiration of Section 215—if it remains expired—combined with the creation of a clear pathway for enacting the Lee-Leahy reforms in the future, should ultimately produce a big net win for Americans’ privacy. Contact: Gene Schaerr, General Counsel Mark Davis, Director of Policy Bob Goodlatte, Senior Policy Adviser Email: gschaerr@protectprivacynow.com mdavis@protectprivacynow.org rgoodlatte@protectprivacynow.org Phone: (202) 787-1060 (202) 909-5824 (202) 753-5047 The President and others are rightly concerned about the FBI’s treatment of Carter Page and, by extension, the presidential campaign and transition, under the aegis of the Foreign Intelligence Surveillance Act or FISA. The President is also right to question whether the original House version of the Section 215 reauthorization—H.R. 6172—would have prevented the Page fiasco.
The solution is for the House to pass H.R. 6172 with the bipartisan amendment—sponsored by Senators Lee and Leahy—that was added in the Senate by vote of 77-19. That amendment was carefully crafted, among other things, to prevent a recurrence of the Page situation: It requires the Foreign Intelligence Surveillance Court to appoint an attorney with a national security clearance and expertise in privacy laws as an “amicus” to advocate for privacy in certain “sensitive investigations”—including, specifically, any FISA proceeding involving “candidates” for public office and their staffs. As we’ve explained in depth here, an amicus can bring many of the benefits of our ordinary adversarial legal system to the secret FISA court proceedings—which of necessity cannot include the target or his attorney. A properly equipped amicus can catch mistakes and misrepresentations by the FBI—as we think a good amicus would have done in the Carter Page case. And the mere presence of an amicus—or even the possibility one will be appointed—will deter such mistakes and misrepresentations by making it more likely the court will learn about them and take appropriate action against those involved. Thus, a vote for the reauthorization—as amended with the Lee-Leahy and (if it passes) the Lofgren-Davidson provisos—would allow you to tell your constituents you not only stood up for their online privacy, but also acted to reduce the risk of another Carter Page fiasco. By contrast, a vote against the Senate-amended H.R. 6172 would not have any such effect. Yes, it might help prevent the reauthorization of Section 215 of the Patriot Act and related FISA authorities that expired on March 15. But the FBI’s surveillance of Carter Page didn’t rely on those authorities. It relied instead on a different part of FISA, Title I. The Lee-Leahy amendment, moreover, applies not just to Section 215 and the other expired authorities, but also to surveillance initiated under Title I—as in the Carter Page case. So the Senate-amended reauthorization bill would strike a major blow for increased surveillance accountability in that very kind of proceeding. Accordingly, a vote for the Senate-amended bill is the only vote that will allow you to tell your constituents you acted to fix the Carter Page situation. Of course, if the President and others wish to pursue additional FISA reforms that will better protect Americans’ privacy, we stand ready to work with them to that end. Bob Goodlatte, Former Chair House Judiciary Committee Member of Congress 1993-2019 Buck McKeon, Former Chair House Armed Services Committee Member of Congress 1993-2015 Contact: Gene Schaerr General Counsel Email: gschaerr@protectprivacynow.org Phone: (202) 787-1060 Mark Davis Director of Policy Email: mdavis@protectprivacynow.org Phone: (202) 909-5824 The Lofgren-Davidson amendment to the Patriot Act reauthorization (HR 6172) is modest, worthy and necessary. It will protect Americans from government overreach, while still granting government the authorities needed to keep our country safe.
If passed, Lofgren-Davidson will protect some of our most sensitive information – online search history and web browsing – from warrantless snooping. Any record of the sites we visit and the material we access constitutes some of our most highly personal information. That’s especially true when one adds into the mix all of the behind-the-scenes searching in which our smartphone apps engage automatically. Thus, in today’s world, a record of a person’s online searches gives the intelligence agencies a nearly-comprehensive snapshot of our entire lives, including our most personal decisions about matters of faith, medical care, politics, firearms usage, and the exercise of other constitutional rights. If the Fourth Amendment means anything, it should protect our private information from this kind of surveillance without a probable-cause warrant. And that’s what Lofgren-Davidson will do. The common sense underlying Lofgren-Davidson is obvious. That is why a similar amendment in the Senate attracted 59 votes in a strong show of bipartisan support. We hope you will join with Members of both parties to make this an overwhelming vote that will help bring along the Senate and get the amended bill to President Trump’s desk for signature. Bob Goodlatte, Former Chair House Judiciary Committee Member of Congress 1993-2019 Buck McKeon, Former Chair House Armed Services Committee Member of Congress 1993-2015 Contact: Gene Schaerr General Counsel Email: gschaerr@protectprivacynow.org Phone: (202) 787-1060 Mark Davis Director of Policy Email: mdavis@protectprivacynow.org Phone: (202) 909-5824 Former House Judiciary Chairman Bob Goodlatte, a PPSA Senior Policy Advisor, reveals how much remains at stake in the provisions of the Daines-Wyden Amendment, which would protect our online search histories and web browsing from warrantless surveillance.
Though this measure did not pass the Senate, it gained a strong majority – 59 votes – just one vote shy of the 60-vote threshold for passage. PPSA stands with our peer organizations in the civil liberties community supporting passage of the provisions within Daines-Wyden in the House bill. |