Monday, March 30, 2020

Patriot Act Expansion Of FISA Lapses

For the time being. Emailer Jim sent me a link to the NYT article that explains that the House recessed without addressing the Senate bill that would have renewed the Patriot Act's expansion of FISA in the fields of counterterrorism and espionage investigations. The title and sub-head say it all:

House Departs Without Vote to Extend Expired F.B.I. Spy Tools 
The operational effect may be limited because the surveillance laws remain in effect for existing investigations.

As we explained earlier, of the three provisions in question,

(1) the “business records” provision;
(2) the “roving wiretap” provision; and
(3) the “lone wolf” amendment to the FISA definition of “agent of a foreign power”.

only #1, regarding "business records" was really controversial. This was the provision that allowed NSA to scoop up all metadata. Later developments led to the FBI grossly abuse their ability to search NSA databases in order to try to prevent Donald Trump's election--and when that failed to lead an Intel Community coup against the president.

Even this temporary lapse of these provisions is unlikely to have much effect, as the NYT explains:

Still, the lapse of several more weeks may not have a significant operational effect on the F.B.I., said Julian Sanchez, a specialist in surveillance legal policy at the Cato Institute.  
That is because of the way the law is written. A so-called savings clause permits the laws to remain in effect for investigations that already existed on March 15, or for new investigations into events that occurred before then.  
“The authorities remain available for either investigations open at the time of expiration or investigations predicated on underlying conduct that predates the sunset date,” Mr. Sanchez said.  
The F.B.I. has open-ended investigations into long-term organizational threats, including major terrorist groups like Al Qaeda and the Islamic State and the espionage agencies of foreign adversaries like Russia and China. Thus, the FISA court that has oversight of national security surveillance can still issue orders giving investigators the power to target a newly identified suspect linked to one of those entities.
A majority of lawmakers in both chambers support extending the expired provisions, but they have been caught up in a larger argument over whether and how strictly to impose new restrictions on the F.B.I.’s FISA powers after an inspector general’s damning report found numerous factual errors and omissions in applications to target the former Trump adviser Carter Page during the Russia investigation.  
The House passed a bill, ... that would extend the expiring provisions while making changes to FISA.  
The House bill, for example, would push the FISA court to appoint an outsider to critique the government’s arguments when a wiretap application raised serious issues about First Amendment activity, which could include political campaigns. 
It would also make clear that the government cannot use a FISA business records order to collect information — like cellphone location data, which in a criminal investigation requires a search warrant — that has a higher legal standard.  
But amid objections from libertarian-leaning senators of both parties that the House bill fell short in curtailing surveillance powers, the Senate did not take it up.  
Instead, the Senate voted to temporarily reinstate the three tools unchanged until June — giving itself more time to negotiate its own surveillance overhaul package. But the House did not cooperate.


  1. By definition, laws do not inhibit criminal behavior, and that dictum applies to organizations as well (and specifically to rogue federal agencies). Laws only serve to pacify the public with an illusion of remedy.

    When the Obama Administration seduced the DOJ/FBI/CIA/NSA into becoming de facto criminal enterprises, the import of laws became irrelevant. The Deep State coup is still ongoing and upping the ante by now crashing the world economy. The FISA renewal is trivial in comparison.

    Only Barr/Durham have the power to effect meaningful change, and nothing less than serious indictments will suffice.

  2. "By definition, laws do not inhibit criminal behavior"

    Not actually true. They don't prevent all criminal behavior, but they often to inhibit it. If they don't there are other problems.

  3. When we were a predominantly religious nation, I would agree that laws (like Commandments) largely served to guide the flock and inhibit straying. But church attendance continues to decline and most of the remainders are elderly. The rogue Federal agencies were easily seduced into criminality because many senior staff lacked moral character borne of religion's decline. That will not be fixed with a new or renewed secular law.

    1. Unknown: Eric Voegelin has written some brilliant books on what might be called the metaphysical underpinnings of the state and what happens to the state when those underpinnings are removed, which is where we are now. We live in a post 'God is dead' world, the limits of which are becoming increasingly apparent.

    2. Voegelin calls the spirit of modernity 'gnosticism' and identifies the 'Reformation' as the event that marked when gnosticism took control over the institutions of Western society. Since then the history of the West in the big picture is the working out of the practical implications of gnosticism as a controlling societal ideology. Classical liberalism and the many forms of socialism are simply variations of gnosticism. The roots run even deeper than that, however. These are matters I explored early on on this blog. Voegelin himself, however, was infected by the same influences, especially the Neo-Kantian of his education.

    3. I only arrived at this blog in the last two years, so I missed the earlier Voegelin material. "Since the life of the spirit is the source of order in man and society, the very success of a Gnostic civilization is the cause of its decline."

      IOW, we have met the enemy and he is us.

  4. Am I the only one getting the vibe that the Barr - Durham circus is done? Is Barr using Zoom? Or is he sitting in a hot tub, waiting things out?

  5. Barr has spoken publicly about the importance of moral moorings in both political life and the proper functioning of the Judiciary. I don't think he will drop the ball. The stakes are too important, and not just for a return to the rule of law, but also as an example to the people that the righteous shall prevail over the wicked.

    Wray, on the other hand, continually fights tooth-and-nail to conceal the FBI criminality in the RussiaHoax and ongoing coup against a duly elected president. That conduct is the very opposite of strong moral character, and it is clearly noticed by all outside of DC.

  6. God is at the center of everything. We have declined morally in the time that I have been on this earth. Of course that is my opinion and I am a flawed man who does not know everything.

    I can't speak for the Almighty but maybe He uses events like 9/11 and the Wuhan virus to call us back to Him. Look at the election of Donald Trump reminds me of the Lord sending good kings to Israel and Judah, although the people did not deserve such leadership. And, no, I am not conflating God and Donald Trump. I'm glad to have DJT as President, but I do not pray to him or kneel down to him in worship.

    Some people are waking up to what is going on in our country. During the social distancing shut down, some neighbors are reconnecting (at six feet apart), more people are out walking their dogs, etc.

    As Christians, we always have hope because we don't know how the journey will go, how it will meander, or end. But we know that we will arrive at our destination. That is promised to us.


    OIG report on Woods procedure failures in FISA Warrant applications.

    Issued earlier today:


    Our lack of confidence that the Woods Procedures are working as intended stems primarily from the fact that:

    (1) we could not review original Woods Files for 4 of the 29 selected FISA applications because the FBI has not been able to locate them and, in 3 of these instances, did not know if they ever existed;

    (2) our testing of FISA applications to the associated Woods Files identified apparent errors or inadequately supported facts in all of the 25 applications we reviewed, and interviews to date with available agents or supervisors in field offices generally have confirmed the issues we identified;

    (3) existing FBI and NSD oversight mechanisms have also identified deficiencies in documentary support and application accuracy that are similar to those that we have observed to date; and

    (4) FBI and NSD officials we interviewed indicated to us that there were no efforts by the FBI to use existing FBI and NSD oversight mechanisms to perform comprehensive, strategic assessments of the efficacy of the Woods Procedures or FISA accuracy, to include identifying the need for enhancements to training and improvements in the process, or increased accountability measures.

    1. And, sundance has just posted that:

      "... the chief counsel for every FBI field office are required to conduct an “Accuracy Review” of selected FISA applications. One per field office (25 to 30 field offices),which are also sent to DOJ-NSD (main justice) for general counsel inspection.

      Keep in mind, these “accuracy reviews” are *known in advance*, so the FBI has all the time in the world, to select the best FISA file for review. Additionally, I surmise the OIG wanted to inspect the “accuracy review” FISA’s, because they would show the *best light* on the overall system itself. The OIG was looking for the best, most compliant, product to report on.

      However, when the OIG inspected 42 of these Accuracy Reviews, the IG identified that *only three* of them had accurately assembled documents (Woods File), supporting the application. The error rate within the files self-checked was over 93%."

    2. Actually, the FBI has 56 field offices--easily verified. However, I'm quite sure not all of those field offices have submitted FISA applications recently.

      I'll need to read the OIG report to assess the rest of that. I suspect sundance has some things wrong. After all, if the FBI were able to selectively pick the best files, why would it pick those with mistakes. And if it found mistakes, why not just cover them up? Why document them if you want to look good?

    3. I just did a quick skim looking for anything on those accuracy reviews. I'll have to eat my words. The whole process looks like the blind leading the blind.

    4. Maybe the blind leading the blind, or maybe fear of DoJ pro-DJT moles, who now have enough fire-in-the-belly, that they would leak like sieves, if any whitewash were tried?
      If Rosey etc. have indeed flipped, there's no telling how many others are playing Prisoner's Dilemma, and moving to suck up to DJT's allies.

    5. Unfortunately, I don't believe that's the case. The OIG review dug back as far as 2014, long before the Barr DoJ was a glimmer in Trump's mind. These problems are obviously systemic and of long duration.

    6. Yeah, systemic and of long duration, once Sparklefarts could see that he'd get minimum pushback, vs. such trial balloons as the IRS scandal.

  8. To clarify, I'm talking, not about the problems, but about the drive (?) to check on them.