from the pretty-much-why-the-transparency-should-have-been-in-place-the-whole-time dept
With multiple redactions and having survived a declassification review, another FISA court opinion has been released to the public. The opinion dates back to November of last year, but was only recently dumped into the public domain by the Office of the Director of National Intelligence. While the five-month delay seems a bit long, the alternative is no public release at all. The small miracle that is the public release of FISA court opinions can be traced directly to Ed Snowden and a handful of FOIA lawsuits -- not that you'll see either credited by the ODNI when handing over documents.
The bad news is that the FISA court has uncovered still more abuse by the NSA and FBI. While there appears to be no imminent danger of the court yanking the agencies' surveillance privileges (as nearly happened in 2008), the presiding judge (Thomas Hogan) isn't impressed with the agencies and their cavalier attitude towards mass surveillance. The stipulations put in place to offset the potential damages of untargeted mass surveillance -- strict retention periods and minimization procedures -- are the very things being ignored by the NSA and FBI.
Josh Gerstein of Politico has dug into the 80-page decision and discovered that the NSA is still holding onto collected data indefinitely.
"The court was extremely concerned about NSA's failure to comply with its minimization procedures—and potentially" a provision in federal law, Hogan wrote. The NSA violations appeared to involve preserving surveillance data in its systems beyond the two or five years after which it was supposed to be deleted.The NSA apparently can't even tell the truth to a court in which it has the luxury of making its submissions ex parte and whose decisions aren't released until months after the fact in heavily-redacted form.
"Perhaps more disappointing than the NSA's failure to purge this information for more than four years, was the Government's failure to convey to the Court explicitly during that time that the NSA was continuing to retain this information," the judge wrote in the Nov. 6, 2015, opinion made public Tuesday.
The ODNI has defended its actions using the "sins of omission" clause (not actually a thing).
"The Government has informed the Court that there was no intent to leave the FISC with a misimpression or misunderstanding, and it has acknowledged that its prior representations could have been clearer..."Not mentioned in the pseudo-mea culpa is the fact that the "misimpressions" were based on "prior representations" made by the government over a period of several years. Judge Hogan refers to the NSA and FBI's abuses as "compliance issues," which sort of undercuts the irritation shown in the opinion -- as if illegal surveillance were nothing more than misplaced MSDS sheets.
Fortunately, Judge Hogan doesn't let the NSA's co-signer -- the FBI -- off the hook for its abuses. While the FBI is allowed to partake in the NSA's data haul to collect info on criminal investigation targets located overseas, the communications collected must be reviewed by a "taint team" to ensure that any privileged communications (suspects' correspondence with legal representation, etc.) are removed from the collection. Privilege, schmilege.
Hogan said the FBI revealed some such incidents in 2014, but the number was redacted from the opinion made public Tuesday. "The government generally attributed those instances to individual failures or confusion, rather than a 'systematic issue,' " Hogan wrote. However, more incidents occurred from mid-2014 and through 2015, although again the precise number was not released. In some instances, FBI agents believed, incorrectly, that they didn't need to set up a review team if the indictment was under seal or outside the U.S.The FBI's excuses for these failures range from merely sad to WTF. It's almost impossible to see how it could reach the conclusion that it should have access to privileged communications simply because of a sealed indictment. Sealed indictments are the bread-and-butter of FBI-related prosecutions, especially now that it's a full-time participant in the War on Terror. According to this assertion, the FBI apparently believes it should have access to scooped up attorney-client communications in a vast majority of its investigations.
The decision notes the FBI has put new minimization procedures in place. Much like the FBI, the judge won't discuss the new procedures in detail. The opinion only notes that he is "satisfied" the FBI is "addressing the issue." Hopefully, the new controls are much tighter than the previous set, as the administration has announced it's granting the FBI even more access to NSA data hauls. Of course, the FBI has shown repeatedly -- over the entire history of the agency -- that it will craft policies stipulating inches and help itself to several yards.