Initial Observations on Newly Declassified FISA Documents

With the release of yesterday’s declassified FISA documents, the debate over whether the FISA Court is an effective check on government surveillance activities is over. Or at least it should be. Before providing some preliminary observations explaining this point, a comment on the release itself: I understand why the Director of National Intelligence (DNI) declassified and released these documents. But I don’t like it one bit. I can imagine at least two possible reasons for the release: either the government knows that more leaks are coming and is trying to get ahead of the newspapers, or, it felt compelled to push back against the story line that the FISA Court is just a shadow of a real court. But I hope it is clear that the critics of surveillance activities only see transparency as the first step in a longer fight. The strategy is a one-two punch. The first punch is transparency. The second is to scale back or eliminate our national security surveillance capabilities altogether. Don’t take my word for it, an activist from the Electronic Frontier Foundation said as much in a discussion I took part in on KCRW’s show “To the Point” yesterday. Moving on, I am still working my way through the documents, but here is what I see so far in the Court’s rulings:

• A signals intelligence agency that brought an embarrassing and significant technical error to the Court’s attention. No sugar-coating here: there was a major disconnect between one subset of the technical implementation and the manner in which the implementation had been previously reported to the Court. As Ben and Lauren explain here, this called into question the Court’s prior determinations that the NSA’s targeting and minimization procedures were reasonable under the FISA and the Fourth Amendment.
• An 80-page opinion from the then-Presiding Judge of the FISA Court, a former federal prosecutor, that takes the government to task for implementing a collection in a way that was different from what the government had originally told the Court.
• A Court that fully understood the issues at play, including the application of the technology involved in NSA’s “upstream” collection to the FISA and the Constitution.
• A Court that had the authority, ability and willingness to the direct the government to correct its actions. A Court that told the government that it could do better, and insisted that it do so.
• A level of confidence that existed between the government and the Court, in that the Court granted the government’s requests to delay its judgment while the government fully investigated the problem and developed information that would help the Court’s consideration of the issues. This confidence enabled important national security surveillance to continue, under the Court’s supervision, while the government gathered data to present to the Court.
• A Congress that was fully informed, in accordance with the FISA statute, through copies of the relevant opinions and the underlying written record, briefings by senior officials and additional detailed reports.
• An internal government compliance and oversight program that likely involved thousands of man hours over a period of months to uncover the nature of the compliance problem and bring that information to the Court.
• A solution reached, in under eight weeks from the Court’s October 3, 2011 opinion, that tightened retention and handling procedures and enabled the Court to find the refined collection activities and procedures compliant with FISA and the reasonableness requirement of the Fourth Amendment.

By way of background, the released documents concern the government’s Section 702 collection: this is the foreign intelligence collection that takes place pursuant to the FISA Amendments Act of 2008 (FAA). The collection is intended to target the communications of non-U.S. persons reasonably believed to be outside the United States. Because those targets have no constitutional privacy protection (they are not U.S. persons and they are not in the United States), the FAA provided a procedure where the Court would approve the government’s targeting and minimization procedures, and the government would not have to seek advance court approval before initiating collection against each newly identified target. According to the government’s cover document accompanying the release of the documents, the declassified opinions are the rulings that Senator Wyden was referring to in July 2012 when he said that there was one occasion that the Court had found that NSA’s implementation of Section 702 was inconsistent with FISA and the Fourth Amendment. In my very first Lawfare guest post on July 26, 2012, I suggested that what the Senator was really after was public disclosure and a reopening of the FISA Amendments Act debate. Well, now the debate is on, but it comes at a high price: we are 21 days away from the anniversary of September 11, 2001. That date, the month of August, and the days leading up to September 11, for the U.S. intelligence community does not mean beaches and barbeques and back-to-school. It means heightened vigilance and round-the-clock monitoring of potential terrorist threats. As flagged by an Interpol notice earlier this month, August is also the anniversary of “violent terrorist incidents in Mumbai, India and Gluboky, Russia as well as in Jakarta, Indonesia…..[as well as] the U.S. Embassy bombings in Nairobi, Kenya and Dar es Salaam, Tanzania.” This year will also mark the one year anniversary of the terrorist attack that killed our ambassador in Benghazi. And what is today’s other news? Allegations that Syria’s President Assad has used gas on his own country’s children. Meanwhile, our senior intelligence leaders are distracted with declassifying documents and holding together what’s left of a rational majority in Congress interested in keeping the nation safe. The intelligence community, including the SIGINT community, does not exist to serve itself. When used at a tactical level, foreign intelligence collection informs war-fighters and intelligence operators in the field so that they can perform their mission. But more importantly, when used at the strategic level, it informs policymakers---most importantly the President---about the ground truth, so that they can make decisions and act, in the interests of the United States, and, when duty calls highest, humanity. As this debate continues, I hope that this value of foreign intelligence collection becomes part of the conversation.