A shocking report by Circa outlines the once Top Secret FISA court ruling. The FBI has long had issues with balancing its counter-terrorism and counterintelligence roles with its primary function of investigating, collecting evidence, and support prosecution of crimes. But in the days after President Obama took office, the agency increasingly tended toward maximum data collection in its efforts to fight threats.
The FBI normally is forbidden from surveilling an American without a warrant. But Section 702 of the Foreign Surveillance Act, last updated by Congress in 2008, allowed the NSA to share with the FBI spy data collected without a warrant that includes the communications of Americans with “foreign targets.”
Yet the agency in 2009 assured compliance with rules regarding intercepts gathered overseas about Americans on U.S. soil.
But the IG said it reviewed the same data and easily found evidence that the FBI accessed NSA data gathered on a person who likely was in the United States, making it illegal to review without a warrant.
For years, this cowboy mentality and kid-in-a-candy-shop attitude of having data and using it in creative ways has brought nothing but trouble for the FBI. Comey took over in 2013 from Robert Mueller, who originally oversaw the implementation of FISA Section 702.
Comey and now Mueller have been the chief investigators of the Trump-Russia investigation, at the same time the FBI was–admittedly not the majority of the time, but significantly–playing fast and loose with secret warrantless intercepts on U.S. citizens.
The most serious involved the NSA searching for American data it was forbidden to search. But the FBI also was forced to admit its agents and analysts shared espionage data with prohibited third parties, ranging from a federal contractor to a private entity that did not have the legal right to see the intelligence.
The agency pushed back, claiming that fast-moving counter-terrorism operations don’t allow time for agents to obtain permission every time they need data.
“If we require our agents to write a full justification every time think about if you wrote a full justification every time you used Google. Among other things, you would use Google a lot less,” a lawyer told the court.
It’s true that in a pluralistic, free society like America, homegrown and foreign terrorists would have an easier time operating if it weren’t for Big Brother listening. But remaining a pluralistic, free society is more important than trying to know everything, all the time, wouldn’t you agree?
The availability of nearly-unlimited data, what traitor (and hero to some) Edward Snowden exposed as widespread and comprehensive collection on just about anyone the Feds want, and many degrees of freedom beyond that (called “incidental” but collected nonetheless), might prove an irresistible temptation for some in government whose purposes are less than righteous.
This is why the “unmasking” requests by political appointees in the Obama White House are so troubling (especially that they were considered “routine”). Ben Shapiro raised a couple of important questions on how this relates to former National Security Advisor Mike Flynn (and now presidential advisor Jared Kushner).
Trump acolytes will undoubtedly suggest that this is precisely what happened with Lt. Gen. Mike Flynn, who was caught up in surveillance of Russian third parties, unmasked by the Obama administration, and then revealed to the press by someone in the know. They will suggest that we now know that the FBI was often exceeding its mandate by searching data without a warrant that they should not have, and by occasionally allowing that information to flow outside of established channels.
In reality, the business of national security is sloppy. Mistakes will undoubtedly be made. The question is twofold: what sort of mistakes were made with regard to leaking the identity of Flynn to the press? And more generally, were the systems in place for restricting the free flow of classified information about American citizens sufficient?
It’s become more obvious that the safeguards between political and counter-terrorism operational access to and use of intelligence data are too weak. And as Sen. Rand Paul has been arguing for quite some time, we may need to look very closely at how, exactly what, and who is collecting data about American citizens.