Fbi Fisa Court: Lawful Or Unlawful?

The Foreign Intelligence Surveillance Act (FISA) of 1978, with amendments, is a post-Watergate reform that prescribes procedures for granting quasi-judicial authorization for electronic surveillance of persons engaged in espionage, terrorism, weapons or narcotics trafficking. The United States Foreign Intelligence Surveillance Court (FISC), also called the FISA Court, is a U.S. federal court established under FISA to oversee requests for surveillance warrants against foreign spies inside the United States by federal law enforcement and intelligence agencies.

FISA has been criticized for infringing on Americans' Fourth Amendment rights. In 2013, a copy of a top-secret warrant issued by the FISC was leaked to the media, sparking a public outcry of criticism and complaints that the court exceeded its authority and violated the Fourth Amendment by issuing general warrants.

In 2018, the FISC held that the FBI's procedures for accessing Americans' communications that are incidentally collected under Section 702 of FISA violated both the statute and the Fourth Amendment. The FBI was forced to revise its procedures, and the court approved the revised procedures.

In 2023, the FISC released an opinion highlighting that remedial measures implemented by the FBI in 2021 and 2022 have improved the Bureau's Section 702 query compliance.

The FBI's failure to understand the legal standard for obtaining a FISA warrant

In 2004, a report by the Office of the Inspector General (OIG) revealed that the FBI had failed to be "scrupulously accurate" in its FISA applications. This was a result of systemic errors, such as a lack of formal training for attorneys on the FISA application process, a lack of policies regarding the required content of FISA applications, and a lack of resources for handling FISA applications.

In 2018, the Foreign Intelligence Surveillance Court (FISC) held that the FBI's procedures for accessing Americans' communications that were "incidentally" collected under Section 702 of FISA violated both the statute and the Fourth Amendment. The court found that the FBI was conducting millions of backdoor searches, including "batch queries" that rested on the same discredited legal theory used to justify the NSA's bulk collection of Americans' phone records.

The FISC's October 2018 ruling identified three main issues with the FBI's practices: downstream collection of certain communications, the FBI's failure to record U.S. person queries, and the improper use of U.S. person queries. The court expressed "serious concern" about the large number of queries that evidenced a misunderstanding or indifference to the querying standard.

In response to the FISC's ruling, the FBI was forced to revise its procedures and implement remedies, such as requiring FBI personnel to document their reasons for performing a U.S. person query before viewing content information. However, critics argue that these remedies are inadequate and do not address the underlying issues with the FBI's practices.

The FBI has acknowledged the importance of improving its compliance with legal requirements and has implemented reforms to enhance privacy, oversight, and accountability. However, there is ongoing debate about the propriety of re-authorizing certain controversial FISA provisions, with some arguing that the FBI's failure to be "scrupulously accurate" has undermined public trust and the effectiveness of FISA-related tools.

The FBI's failure to adequately train its agents on the legal requirements for a FISA warrant

The FBI has been criticised for its failure to adequately train its agents on the legal requirements for a FISA warrant. In 2005, it was revealed that the Bush administration had been conducting surveillance against US citizens without specific approval from the FISA court. This led to the resignation of Judge James Robertson, who criticised the court-sanctioned expansion of government surveillance.

In 2011, the Obama administration was granted permission by the FISA court to reverse restrictions on the NSA's use of intercepted phone calls and emails, allowing them to search for Americans' communications without a warrant. This was done without public debate or specific authority from Congress.

In 2013, a secret court ruling found that the government's warrantless surveillance of emails routinely violated the Fourth Amendment. The ruling revealed that the FBI was conducting millions of backdoor searches, including "batch queries" that rested on the same discredited legal theory used to justify the NSA's bulk collection of Americans' phone records.

• Inaccurate information provided to the FISA court in more than 75 applications for search warrants and wiretaps, including one signed by FBI Director Louis J. Freeh.
• Misrepresentations about criminal investigations on FISA targets, with inaccurate information presented about the wall procedures to separate criminal and intelligence investigations.
• Failure to comply with the FISA court's requirement that anyone who reviewed FISA-obtained materials or other intelligence signed a certification acknowledging the court's approval for dissemination to criminal investigators.
• Errors in FISA applications related to the description of wall procedures in several FBI field offices, leading to a ban on the SSA from the FISA court.
• Lack of a formal training program for attorneys in OIPR or agents at the FBI to learn about the FISA application process.

To address these issues, the FBI has implemented new measures to improve compliance and accountability, including enhanced training and an escalating scheme for employee accountability, including discipline and possible dismissal.

The FBI's failure to adequately train its agents on the technical requirements for a FISA warrant

The Foreign Intelligence Surveillance Act (FISA) of 1978 established the FISA Court to oversee requests for surveillance warrants against foreign spies inside the US. The FISA Court plays a crucial role in balancing national security interests and the protection of civil liberties. However, the FBI's handling of FISA warrants has come under scrutiny due to non-compliance issues and concerns about inadequate training.

In 2018, the FISA Court held that the FBI's minimization procedures violated both the statute and the Fourth Amendment. The court found that the FBI was conducting millions of backdoor searches, including "batch queries," which rest on the same legal theory used to justify the NSA's bulk collection of Americans' phone records. The court expressed serious concern about the large number of queries that evidenced a misunderstanding or indifference to the querying standard.

The FBI's querying procedures require that each query of FBI systems containing raw Section 702 data must be reasonably likely to retrieve foreign intelligence information or evidence of a crime. However, the court found that since April 2017, the government had reported a large number of FBI queries that did not meet this standard. These included queries using 70,000 identifiers associated with people who had access to FBI facilities and systems and queries using Social Security Numbers to conduct U.S. person queries.

The court identified several factors that heightened its concern, including limitations on existing oversight mechanisms and a mismatch between the FBI's querying procedures and its encouragement of routine use of queries. The heavy redactions in the court's opinion also make it difficult to fully assess the significance of the government's new form of downstream collection, which may involve the acquisition of "abouts" communications.

To address these issues, the FBI has implemented remedial measures, such as improved mandatory FISA training and new accountability procedures for employees. However, the effectiveness of these measures in ensuring adequate training and compliance with FISA requirements remains to be seen.

The FBI's failure to adequately resource and support its agents in obtaining a FISA warrant

The FBI has faced criticism for not providing adequate resources and support to its agents during the process of obtaining a Foreign Intelligence Surveillance Act (FISA) warrant. This issue has been a concern for several years and has been the subject of investigations and reports by various entities, including the Senate Judiciary Committee, the Department of Justice Inspector General, and the FBI itself.

One of the main issues identified is the lack of proper training for FBI agents and key Headquarters officials in understanding the legal standards and procedures required for obtaining a FISA warrant. In some cases, agents and officials did not have a clear understanding of the applicable legal standards, such as probable cause and the definition of an "agent of a foreign power." This lack of training hindered their ability to effectively seek and obtain FISA warrants.

Additionally, there have been reports of a breakdown in communication and a lack of accountability among FBI personnel, with a "revolving door" of supervisory agents at FBI Headquarters, resulting in a lack of continuity and expertise. The multiple layers of supervision and bureaucracy at Headquarters have also contributed to delays and hindered the ability of field agents to initiate and pursue FISA warrants.

Furthermore, the FBI has been criticized for its poor information technology capabilities, which have hindered agents' ability to access and utilize relevant information effectively. The Automated Case Support (ACS) system, which serves as the central electronic repository for investigative documents, has been described as cumbersome and inadequate for conducting effective searches.

The issues with resources and support have also been attributed to a deep-rooted culture within the FBI that discourages initiative and critical thinking among field agents. There is a perception that FBI Headquarters is not supportive of field agents and often stifles their efforts rather than providing assistance. This has created a sense of distrust and a lack of coordination between Headquarters and field offices.

To address these issues, the FBI has implemented various reforms and improvements. For example, the FBI has established administrative guidelines to provide a uniform interpretation of legal standards and procedures for obtaining FISA warrants. The FBI has also increased training programs and improved its information technology systems. However, despite these efforts, concerns persist about the adequacy of resources and support provided to FBI agents in obtaining FISA warrants.

The FBI's failure to adequately oversee and hold its agents accountable in obtaining a FISA warrant

In 2002, the Foreign Intelligence Surveillance Court (FISC) rebuked the FBI and Justice Department officials, stating that they had "supplied erroneous information to the court" in more than 75 applications for search warrants and wiretaps. This included a warrant signed by FBI Director Louis J. Freeh.

In 2005, it was revealed that the Bush administration had been conducting surveillance against US citizens without specific approval from the FISA court since 2002. This led to the resignation of Judge James Robertson from the court, who later criticised the expansion of government surveillance and the creation of a secret body of law.

In 2011, the Obama administration was granted permission by the FISC to reverse restrictions on the National Security Agency's (NSA) use of intercepted phone calls and emails. This allowed the agency to search for Americans' communications in its databases without a warrant, as long as the target was "reasonably believed" to be outside the US.

In 2013, a secret ruling by the FISC redefined the word "relevant" in the context of surveillance, allowing the NSA to gather phone data on millions of Americans. This was a significant expansion of the government's surveillance powers and raised concerns about the protection of Americans' Fourth Amendment rights.

In 2016, it was revealed that the FBI had obtained a FISA warrant to monitor Carter Page, a foreign policy adviser to then-candidate Donald Trump, on the basis of evidence gathered by politically motivated sources. This led to widespread criticism and debates about the FISA court's role and transparency.

In 2018, a report by the Office of the Director of National Intelligence revealed that the FBI had conducted millions of backdoor searches of Americans' communications, including queries of people who were not suspected of any wrongdoing. This raised serious concerns about the privacy rights of US citizens and the effectiveness of oversight mechanisms.

In summary, the FBI's failure to adequately oversee and hold its agents accountable in obtaining FISA warrants has been a recurring issue over the years. This has resulted in violations of Americans' privacy rights, erosion of trust in the court, and concerns about the protection of constitutional rights.

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