National Security

Declassified Documents Reveal Illegal Surveillance of Americans Under Obama Administration

“With the new administration of President Donald Trump and his new Attorney General, there is a move to limit the abuses of the restrictions imposed by the FISA courts.

The release of ‘declassified’ top secret documents reveals that the NSA, under the Obama administration, routinely violated standards, safeguards, and the Constitution.

In a ruling issued last month, but just now unsealed, the 99-page court opinion chastised NSA for spying without warrants.  The FISA Court (Foreign Intelligence Surveillance Court) censured administration officials saying the failure to disclose the extent of the violations earlier amounted to an “institutional lack of candor” and that the improper searches constituted a “very serious Fourth Amendment issue.”

The 4th Amendment says the following: “no Warrants shall be issued but upon probable cause supported by Oath or affirmation and particularly describing the place to be searched and the person or things to be seized.” 

So, what exactly is at issue here?  Use of NSA generated data without a FISA warrant under the guise of National Security purposes, poses a serious threat.  Blatant, consistent, and knowingly violating the minimization procedures and protocols for collecting data was for years ignored.

It was uncovered that more than 5 percent or one out of every 20 searches seeking upstream Internet data on Americans inside the NSA’s so-called Section 702 database violated the safeguards Obama and his intelligence chiefs vowed to follow in 2011.

To understand what is at stake here, we must first know what FISA Section 702 means.

Section 702 states the Foreign Intelligence Surveillance Act Authorizes the intelligence community to target the communications of non-U.S. persons located outside the United States for intelligence purposes.  Section 702 is a critical legal authority that allows the government to target the communications of foreigners outside the United States.  It is not bulk collection and cannot be used to target Americans.

For example, the government could use FISA Section 702 to obtain the e-mails or phone calls of an ISIS member in Syria who is plotting an attack.  The government cannot use FISA Section 702 to target the e-mails or phone calls of any American.

The government can only use FISA Section 702 with the approval of the Foreign Intelligence Surveillance Court.  The Court must approve “targeting procedures” to ensure that the government only targets the communications of foreigners outside the United States.

The Court must also approve “minimization procedures” to ensure the government removes incidentally collected information about Americans.  Federal courts and the Privacy and Civil Liberties Oversight Board have found FISA Section 702 to be constitutional and legal.

FISA Section 702 is one of the most relevant judicial authorities to stop terrorist attacks.  Over a quarter of NSA’s intelligence reports on international terrorism include information from FISA Section 702 collection.

For example, FISA Section 702 allowed the government to monitor the e-mail of an al-Qaeda courier in Pakistan.  That monitoring enabled the FBI to find, and ultimately stop, a plot to bomb the New York subway in 2009.

FISA Section 702 also yields extremely valuable foreign intelligence about hostile adversaries

Problems in Section 702

In 2011, it became clear to the FISA court that the minimization procedures were providing insufficient protection to Americans.  Of particular concern was the use of identifiers of American citizens as selection terms for database searches.  Targeting Americans for Section 702 searches increased the likelihood that wholly domestic communications between Americans would be collected in violation of the 4th Amendment.

In this light, minimization procedures were ratcheted up.  The most significant change, as the FISA court opinion relates, was that the revised procedures categorically precluded the NSA analysts from using U.S. person identifiers to query the results of upstream Internet collection.

This meant the NSA was not supposed to use an American’s phone number, e-mail address, or other “identifier” in running searches through its upstream database.  It is this prohibition that the NSA routinely and extensively violated.  Evidently, there was widespread use of American identifiers throughout the years after the 2011 revision of the minimization procedures.  The violation was so broad that, at the time the Obama administration ended, its scope had still not been determined.

As an example, if the NSA was searching for a particular term, say Michael Flynn, and you sent an email to a friend or anyone else talking about Michael Flynn in the news, your email could have been gathered because of the wide search term.  This would have subjected your private communication to collection and analysis by NSA personnel to determine if it was of intelligence value.  Clearly, it was not, but your private communication was still subject to collection and search, a violation of the 4th Amendment.

What is FISA and Why it is Important

This Foreign Intelligence Surveillance Court (FISA Court or FISC) was created in 1978 as a result of recommendations of the Church Committee, composed of a series of intelligence scandals in the 1970s.  The court was purportedly created as an additional safeguard against unlawful activity by U.S. intelligence agencies, which was widespread.

The goal of the FISA court, as originally conceived, was to place judicial oversight on the surveillance activities of the NSA, by requiring the agency to obtain warrants from the court before intercepting communications.  This was to place the NSA under the same kind of legal constraints as regular police, with requirements for evidence being put before a court in order to obtain a warrant for the search.

However, unlike the standard court system, the FISA court was far more secretive. With a view to giving judicial scrutiny to preserve the secrecy of NSA activities, the FISA court meets in secret with only government representatives present at its proceedings.  The hearings are closed to the public, and the rulings of the judges are classified, and rarely released after the fact.

On May 11, 2017, the Director of National Intelligence declassified some rulings of the Foreign Intelligence Surveillance Act (FISA) court.  Most of the ruling concerned the NSA’s apparent violations of the 2008 FISA Amendments Act, but, as Circa notes, 83 pages into the 99-page ruling, the FISA court reserved some criticism for the FBI, as well.

The FBI has access to certain FISA data from the NSA, but it’s required to follow privacy “minimization procedures, ” and it can’t share the FISA data with anyone outside the government.  On at least two occasions, the FBI shared raw FISA data with private contractors, apparently for analytical purposes, and the court notes that the government acknowledged in October 2016 that it’s “investigating whether there have been similar cases in which the FBI improperly afforded non-FBI personnel access to raw FISA-acquired information on FBI systems.”

Even though the FBI has identified violations involving contractors, the court is “nonetheless concerned about the FBI’s apparent disregard of minimization rules and whether the FBI is engaging in similar disclosures of raw Section 702 information that has not been reported.” The Obama administration self-disclosed the problems at a closed-door hearing Oct. 26 before the Foreign Intelligence Surveillance Court that set off the alarm.

Under the Obama administration, there appears to have been a philosophy of abuse.  With the new administration of President Donald Trump and his new Attorney General, there is a move to limit the abuses of the restrictions imposed by the FISA courts.  The blatant violations of minimization procedures as required under the law which has now come to light are being corrected.

Under the Trump administration, Attorney General Sessions along with the Director of National Intelligence Dan Coats have set up reforms to the way intelligence agencies operate. In response to this as well as the FISA court rebuke, the NSA has released the following statement:

NSA will no longer collect certain internet communications that merely mention a foreign intelligence target.  This information is referred to in the Intelligence Community as “about” communications in Section 702 “upstream” Internet surveillance.  Instead, NSA will limit such collection to internet communications that are sent directly to or from a foreign target.

Dr. Katherine Harris

Dr. Katherine (Kat) Harris is an OpsLens contributor, a veteran spouse, expat, and former military contractor with over 20 years of expertise in military/family transition, career counseling, higher education, organizational strategic planning, and international relations. She has conducted seminars and workshops for many Department of Army commands, plus many non-profit and community associations. She served as a translator and liaison for American, British, French, and German civilian/military communities in Berlin and Helmstedt, Germany. Academically, Dr. Harris holds a Bachelor of Science in Management Studies from The University of Maryland European Division, a Master of Arts in International Relations from Boston University, and a Doctorate in Education from Rowan University with an emphasis in leadership and higher education in a global context.

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