For the last three weeks, privacy advocates ought to have buffeted by two political whirlwinds. First, the reauthorization of the FISA Amendments Act two weeks ago, authored by House Intelligence Committee Chairman Devin Nunes. And then today, the release of a partisan memo, authored by Nunes’ staffers, purporting to show FBI and Department of Justice abuses of the individual Foreign Intelligence Surveillance Act application process.
Because Nunes and others — up to and including House Speaker Paul Ryan — claimed to be motivated by a concern about civil liberties, it was generally presumed the privacy community would join the clamor. But those of us who’ve been through several surveillance fights with these posers know the reality is far more complex. Ultimately, two principles are at issue: the legal rules and privacy. In both instances, Nunes and Ryan are on the wrong side of the issue.
The FISA Amendments Reauthorization Act extended a key part of FISA, called Segment 702, that lets the government ask domestic telecommunications and tech providers for help spying on foreigners overseas. But that term “target” is misleading, because under the program, the government obtains the American side of any dialogue with a targeted individual. The FBI can obtain that information in raw form and routinely queries the data when it gets leads to find out if Americans have been speaking to suspicious foreigners. That amounts to warrantless access of Americans’ communications, and uncovers certain groups, like Chinese-Americans and Muslims, to far more scrutiny than others.
Also under Section 702, both governments procures certain entirely domestic communications that have obliterated their locating. While it has to purge most of those communications, the NSA can keep any that it presents are evidence of eight enumerated crimes. Again, this is warrantless surveillance of Americans, be done in order to the guise of foreign intelligence collection.
A mere three weeks ago, Nunes and Ryan were happy to have Americans surveilled with no proof whatsoever of wrong-doing.
During the 702 reauthorization debate, reformers like Sens. Ron Wyden( D-Ore .) and Rand Paul( R-Ky .), and Reps. Justin Amash( R-Mich .) and Zoe Lofgren( D-Calif .), tried to add protections in these instances, most notably by requiring a warrant before the FBI searches for communications involving Americans. The statute authored by Nunes, however, merely provides such protection to people for whom the FBI already has probable cause that they are perpetrating international crimes. Nunes’ law flips the Fourth Amendment on its head, providing protection merely to criminal suspects and not for those against whom the FBI has no evidence of wrongdoing.
A mere three weeks ago, Nunes and Ryan were happy to have Americans surveilled with no evidence whatsoever of wrongdoing. Back then, Ryan backed suspicionless, warrantless searches of Americans as a necessary trade off. “This[ bill] ten-strikes the balance that we must have between honoring and protecting privacy rights of U.S. citizens, honoring civil liberty, and stimulating sure that we have the tools we need in this day and age of 21 st century terrorism to keep our people safe.”
Today, however, when a former Trump campaign adviser is at issue, Nunes and Ryan have discovered the due process they personally refused for so many Americans. The Nunes memo purports to show that an individualized FISA application against Carter Page did not adequately inform the FISA court about the political source of one piece of proof among others. The memoranda argues the FBI did not adequately reveal “the political origins of the Steele dossier, ” intelligence reporting paid for by the Democratic Party.
The application instead presented Steele as someone( the memoranda admits) who was a “longtime FBI source” with a “past record of credible reporting.” But even on that key issue, the memo is unclear whether DOJ knew precisely who was paying for Steele’s work. Indeed, it constructs no mention that Republican billionaire Paul Singer was the first political actor to pay Fusion GPS, the firm that hired Steele, for grime on Trump, though Singer himself did not fund any of Steele’s work. In other words, on the central question of whether the FBI could have attributed Fusion’s intelligence to Hillary Clinton and the Democrats or to someone else, the memo doesn’t make its case.
Now, the role of consultants like Steele in judicial proceedings is a matter of grave concern. Consultants with an inadequate comprehend of the Arabic language or Islamic faith have long been used by DOJ as witness against terrorism defendants, and defense attorneys have suspected consultants — perhaps the very same ones — provided intelligence used in FISA applications, just as Steele provided intelligence for the Page application. More recently, consultants assessing crime patterns and recidivism rates have been shown to are dependent upon biased algorithms.
Yet none of the people pushing this Nunes memo have ever uttered a peep about due process concerns posed by outright incompetent consultants in the past. Here, however, they’re wailing that a consultant they admit has been reliable in the past got paid differently than in the past and that wasn’t fully briefed to the court.
The way to deal with both of these issues is to conduct actual oversight of the general problem , not extend protections just to one man like Page.
The sudden interest in problems Nunes and Ryan proved no those who are interested in simply weeks ago is all the more telling, dedicated several details about this memo.