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Tuesday, March 31, 2020

Does The Latest OIG Rip On The FBI's FISA Problems Matter?

Michael Horowitz's OIG has done a progress report on their findings thus far in their ongoing review of whether the FBI bothers to follow its own policy procedures with regard to FISA applications for electronic surveillance. What's he talking about? This.

Basically, every FISA application makes assertions of fact, which are presented to the FISA court, the FISC, in support of the application. Naturally, those assertions of fact are supposed to be supported by, well, evidence that can be confirmed. Horowitz says:

As a result of our audit work to date and as described below, we do not have confidence that the FBI has executed its Woods Procedures in compliance with FBI policy. Specifically, the Woods Procedures mandate compiling supporting documentation for each fact in the FISA application. Adherence to the Woods Procedures should result in such documentation as a means toward achievement of the FBI’s policy that FISA applications be “scrupulously accurate.” 

OK, fair enough. The FBI hasn't been "scrupulously accurate." Mistakes were made. But that doesn't mean that jobs will be lost, or anything drastic like that. Scrupulosity is for small minded people, anyway. The FBI maintains that the mistakes weren't "material", and maybe that's the point. Under the FISA regime, mistakes are mostly administrative miscues. That's the beauty of FISA: no real accountability for the bureaucrats. Isn't that the ultimate bureaucratic dream?


However, in the bigger world of politics this interim OIG report comes at an awkward moment. The Deep State of the Intel Community failed to get the "clean renewal" of the Patriot Act expansions of FISA before Congress recessed. In the short term, that may not make too much difference--if a clean renewal happens when Congress returns.

Let's not quibble about the materiality of the mistakes--nobody knows at this point. What we do know is that material "mistakes" were made, deliberate misconduct was committed, in the attempted coup against Trump. Coming on top of that, this report gives an impression of the FBI as an organization that is either unable or unwilling to follow its own policies--much less the laws enacted by Congress.

That impression will not make renewal of the Patriot Act expansions easier. To the contrary, it will increase the pressure on AG Barr. Barr was a proponent of a "clean renewal," assuring legislators that he would institute new rules and regulations and guidelines to remedy the mistakes that were made--to make sure that in the future mistakes would not be made. The impression of the FBI that this report provides, of an organization that is either inept or devious, will increase the pressure on Barr to agree to hardwiring safeguards into actual legislation, rather than ... new rules and regulations and guidelines.

Where this rubber will meet the road will be "business records" provision of the Patriot Act. That provision allowed for NSA to collect, well, everything. The same coalition of liberals and conservatives that blocked a clean renewal will want, now, to do something about the FBI's previously almost unfettered access to that vast pool of data.

I suggest that, rather than worrying about the few details that have actually emerged from Horowitz's latest report, we should focus on the legislative process. While I have argued that FISA is, itself, unconstitutional, I have also argued that it's probably here to stay. I'm ambivalent about that prospect. On the one hand, I prefer that the Constitution be adhered to. On the other hand, I know that there's no way that the Framers could have envisioned the National Security Surveillance State that we now face. Legislative restrictions on that mostrosity--restrictions added to an unconstitutional law--may be all that we can hope for.

10 comments:

  1. It's probably here to stay, unless Durham actually brings really big busts of the D.S.
    Those could really change views of the "need" for the National Security Surveillance State.
    Which motivates folks like Wray, to move heaven and earth to block Durham.

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    1. The potential good news is that enough members must be hearing from their constituents that a clean renewal was blocked for the time being. The question is, how long can the opposition hold out against institutionalized interests.

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  2. There is a reason why Comey and Company are smug a-hats.

    This was specifically constructed in this way to avoid outright or the appearance of being unconstitutional.

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    1. It was constructed this way long before Comey was a factor, but as smart lawyers they understood the potential in this construct. The potential for power plays and insulation from real accountability.

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  3. As explained previously, for substantially technical reasons, the only realistic way for NSA to collect EC is to clone and archive raw transmissions in real-time. This Master Database then becomes the resource that later can be screened and analyzed based upon search criteria of interest. But everything is there for inspection, and personal privacy is effectively extinct.

    This isn't going to change because the infrastructure and investment is too huge to go back now. And many other entities, both private businesses and foreign governments are doing much the same, albeit on a smaller scale. Nobody does bigger than NSA.

    And we know from Snowden's leaks that this database has been abused, both for personal reasons (checking on a cheating spouse) and also for blackmail purposes.

    This abuse will continue simply because it can. As demonstrated in the new OIG report, there is no integrity or professionalism at FBIHQ when it comes to bending rules or laws. So Congress can have very limited impact on the core problem. And since religious practice continues it's decline, resurgent moral character is unlikely to come to the rescue. If you want to make a real dent in the problem, put some of these miscreants in prison for about 10 years and I can guarandamntee you things will improve in a heartbeat.

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    1. "This abuse will continue simply because it can."

      That's the fear, and a very real one. The only thing that could make a difference would be a hardwired prohibition of FBI access without a court order.

      "Hardwired" = written into a statute that can't be contravened by guidelines, regs, MOUs, etc.

      I won't venture odds.

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  4. I wonder what happened to hearings that Barr was supposed to have at the end of March? My assumption is corona happened, but that does leave me wondering what he and the DOJ are up to and still working on during the corona crisis.

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    1. The postponement was officially announced some time ago by Nadler. Business as usual for DoJ--except for profiteers.

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  5. Sundance mentioned the items reviewed were cherry picked, so this is even worse.

    This gives more leverage for Trump to clean up this mess, the question is when.

    This virus has had a huge impact. And soon it will be election season, so no political releases. My guess is 2021 in Trumps second term with a GOP house, a lot will come out.

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    1. There's a fairly strict limit to what Trump can do. The reason is that he's dealing with laws, and those laws cut very close to basic constitutional issues. The only way to change the dynamics of this situation is to change the laws--the very thing AG Barr didn't want to do, and that all Establishment politicians of both parties wanted to avoid. In that situtation Trump's role is more or less limited to being an advocate. This development with FISA does give him much needed leverage. Beyond that, supporting house cleaning at DoJ and appointing good judges are the most constructive things he can do.

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