FISA

Surveillance Court Reform: William C. Banks Speaks to Sinclair About FISA

Officials warn against letting surveillance powers expire as FISA bill stalls in Senate

(Sinclair Broadcast Group | March 13, 2020) Three surveillance powers that U.S. officials say are vital to national security may expire Sunday night after Senate Republicans backed off plans to vote on a reauthorization bill under an apparent veto threat from President Donald Trump.

Despite vocal support for the USA Freedom Reauthorization Act from the Justice Department, Trump tweeted Thursday that some Republican senators were urging him to veto the bill “until we find out what led to, and happened with, the illegal attempted ‘coup’ of the duly elected President of the United States,” presumably a reference to the FBI’s investigation of his 2016 presidential campaign’s ties to Russian interference efforts.

DOJ Inspector General Michael Horowitz concluded that investigation was legally justified, though special counsel Robert Mueller ultimately did not establish any conspiracy between the campaign and Russia. However, Horowitz’s investigators identified numerous problems with the FBI’s applications to surveil former Trump campaign adviser Carter Page under the Foreign Intelligence Surveillance Act.

The law enforcement powers set to expire Sunday have nothing to do with the authorities used to monitor Page, but the legislation has become a vehicle for moderate reforms to the FISA process. Civil libertarians and the president’s allies say those changes do not go far enough, but Trump’s top law enforcement official disagrees.

“It is of the utmost important that the Department’s attorneys and investigators always work in a manner consistent with the highest professional standards, and this overall package will help ensure the integrity of the FISA process and protect against future abuses going forward,” Attorney General William Barr said Wednesday, urging Congress to pass the bill.

The House passed the USA Freedom Reauthorization Act on a bipartisan basis Wednesday, but the Senate adjourned for the weekend Thursday without taking action …

… William Banks, founding director of the Syracuse University Institute for Security Policy, said the changes to the FISA process in the bill would increase accountability for abuses of the system and require the FBI to disclose more information to the court.

“They’re the kind of thing most of us have wanted to see since these issues came to light,” he said.

Banks expects the House bill will be passed by the Senate soon after it resumes work next week. With lawmakers focused on responding to the coronavirus pandemic and partisanship raging in Washington, he commended House leaders for finding common ground on a relatively contentious subject.

“Given the political climate and everything else going on right now, it’s nothing short of amazing they were able to get this far with a fairly decent and substantive FISA bill,” he said …

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Professor William C. Banks Comments on FISA Reform for USA Today

A report on FBI surveillance of a former Trump campaign adviser shows dysfunction, not political bias. That’s still a problem.

President Donald Trump has used the words spying, political bias, even treason to describe the FBI’s controversial surveillance of a former campaign aide.

“All the politics that surrounded the headlines of this story would rear their ugly head again … It could end up with more amendments to FISA that do more harm than good.”

A massive report released this week by the Justice Department’s watchdog didn’t back up any of those claims. But it did expose errors that hint at systemic problems with how the FBI conducts surveillance on American citizens suspected of working on behalf of foreign powers.

When investigators asked judges for permission to wiretap Carter Page, a former Trump campaign foreign policy adviser, they provided documents that didn’t back up their assertions. A supervisor said he didn’t necessarily review the full documents to make sure they supported what the agents claimed, according to the report.

Investigators overstated the reliability of a former British intelligence officer whose information they used to justify the warrants. They described Christopher Steele as someone whose information had previously been “corroborated and used in criminal proceedings,” the report said. That wasn’t true.

These “basic and fundamental errors,” as the report described them, were made by investigators handpicked to work on a case that was sure to be scrutinized. They raise questions about the accuracy of more than 1,000 wiretap applications processed every year under the Foreign Intelligence Surveillance Act, or FISA …

… During Horowitz’s testimony Wednesday, several Republicans expressed horror at the FISA process, with some suggesting the law needs to be changed.

William Banks, a Syracuse University law professor who studies FISA, said congressional action could further insert politics into a process that should be free of it.

“All the politics that surrounded the headlines of this story would rear their ugly head again,” he said. “It could end up with more amendments to FISA that do more harm than good.”

Aside from the inspector general, who has promised more oversight of the surveillance process, Banks said the Privacy and Civil Liberties Oversight Board, another independent agency that vets policies and regulations, can review the FISA process.

Still, some say Congress should take action.

“The system requires fundamental reforms, and Congress can start by providing defendants subjected to FISA surveillance the opportunity to review the government’s secret submissions,” Hina Shamsi, director of the American Civil Liberties Union’s National Security Project, said in a statement.

Aftergood agreed.

“This is a case where the existing procedures were not adequate,” he said. “The FBI needs to do some of that. I would say Congress needs to do a lot of it.”

Congress must renew certain provisions of FISA in March. If lawmakers want to rewrite laws in response to the inspector general’s report, that would be the time to do it, Banks said …

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Sinclair Speaks to Professor William C. Banks About Horowitz Report, FISA Reform

Amid partisan warfare over Russia probe, lawmakers agree FISA reforms needed

(Sinclair Broadcasting Group | Dec. 12, 2019) The release of Department of Justice Inspector General Michael Horowitz’s long-awaited report on the FBI’s investigation of Russian interference in the 2016 election and its surveillance of a former aide to President Donald Trump’s campaign has fueled a heated partisan debate over the extent to which the 480-page document refuted the president’s claims of a politically-motivated conspiracy to spy on his campaign.

“For many of us who’ve been FISA people for a long time, it came as a surprise and a disappointment.”

But the political theater on Capitol Hill this week threatened to overshadow a central point of Horowitz’s report: that safeguards put in place to protect Americans from inappropriate government surveillance appear to have utterly failed multiple times and need to be fixed …

… Investigators obtained a FISA order to wiretap Page in October 2016 and the permission for surveillance was renewed three times in the following year. Horowitz’s review provided an unusually in-depth look at the applications and the evidence within them, and the results were troubling for national security experts, civil rights advocates, and many members of Congress.

“For many of us who’ve been FISA people for a long time, it came as a surprise and a disappointment,” said William Banks, founding director of the Institute for National Security and Counterterrorism and professor emeritus at Syracuse University.

When concerns have been raised about FISA in the past, proponents have often stressed how thoroughly FISA applications are vetted before they are submitted to the Foreign Intelligence Surveillance Court. However, Horowitz identified at least 17 “significant errors and omissions” in the four Page FISA applications …

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“Machine-Driven Mistakes”: William C. Banks Speaks to Fifth Domain About the IG Report on NSA Surveillance

NSA criticized for ‘increased risk’ of jeopardizing civil liberties

(Fifth Domain | July 25, 2018) The National Security Agency is at an “increased risk” of jeopardizing civil liberties and the privacy of American citizens, according to an inspector general report that comes just months after a controversial program that collects emails and phone calls was extended.

“A fair amount of it was apparently mechanical or machine-driven mistakes.”

The NSA watchdog said that agency analysts performed “noncompliant” searches using the organization’s Foreign Intelligence Surveillance Act Authority, which were caused by “human error, incomplete understanding of the rules, and gaps in guidance.”

According to the report, which covered the period from October 1, 2017, to March 31, 2018 the unauthorized searches were related to the FISA’s counterterrorism authority.

“This has been going on for some time,” said William Banks, a law professor at Syracuse University. He said that noncompliance was a heated topic when the section 702 of the FISA act was reauthorized earlier this year. “A fair amount of it was apparently mechanical or machine-driven mistakes … you would expect it might take the better part of a year for improvement in implementation to show results.”

Previously, privacy groups have raised issue with the noncompliance searches of digital and electronic records …

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“Probability of a Possibility”: William C. Banks Explains the FISA Warrant Process to NBC News

Why Team Trump is wrong about Carter Page, the dossier and that secret warrant

(NBC News | July 23, 2018) Mueller’s Russia probe wasn’t launched because of Carter Page, and the dossier compiled by an ex-spy was only part of the evidence cited to get a warrant.

President Donald Trump and his allies are claiming that the partial contents of a secret national security FISA warrant, released Saturday, vindicate their claim that special counsel Robert Mueller’s Russia investigation was improperly launched on the basis of a speculative opposition research document paid for by Democrats.

The Trump camp says the probe has its roots in the “Trump dossier” compiled by former British spy Christopher Steele, which alleges collusion between the Trump campaign and Russia.

“So we now find out that it was indeed the unverified and Fake Dirty Dossier, that was paid for by Crooked Hillary Clinton and the DNC, that was knowingly & falsely submitted to FISA and which was responsible for starting the totally conflicted and discredited Mueller Witch Hunt!” the president wrote in a tweet Monday morning.

Trump also continues to suggest that the electronic surveillance of his one-time campaign aide, Carter Page, which was authorized by the FISA warrant, launched the Russia probe.

Both of these assertions are false.

Here is why …

National security experts who have reviewed the document say that even the parts that aren’t blacked out contain more than enough information to provide a judge reason to rule that the FBI had probable cause to believe that Page was an agent of Russia.

Probable cause is much lower than the reasonable doubt the standard required to convict someone of a crime. “It’s the probability of a possibility,” said William Banks, director of the Institute for National Security and Counterterrorism at Syracuse University College of Law. Page had already appeared on the FBI’s radar as a target of Russian intelligence recruitment in a separate spy case. He has acknowledged that he traveled to Moscow and met with Russian officials during the 2016 campaign. It would have been malpractice for the FBI, confronted with allegations that Page was helping the Russians, not to investigate, Figliuzzi says …

The FBI disclosed to the court that Steele was paid by people seeking to discredit Trump. But the FBI viewed Steele as credible.

“They dealt with the Steele stuff in an extensive footnote with bolded language,” Banks said. The note didn’t disclose that the dossier was paid for by Democrats because the document didn’t use any names or identities. It called Trump “Candidate 1” even after he was elected president. But the note did say that the dossier appeared to be funded by people seeking to discredit Trump.

In addition, Steele was seen not as a partisan operative, but as a credible source, according to the warrant. The document doesn’t say this, but Steele had helped the FBI for years, including providing crucial information in the U.S. investigation of corruption in international soccer.

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Duelling Memos: Bloomberg Radio Speaks to William C. Banks About the Democratic FISA Memo

Democrats Release Nunes Memo Rebuttal

(Bloomberg Radio | Feb. 26, 2018) William Banks, a professor at Syracuse University Law School, discusses the release of a memo written by Democratic members of the House Intelligence Committee. The heavily redacted document was published in response to a memo written by the committee’s chairman, Devin Nunes. He speaks with Bloomberg’s June Grasso on Bloomberg Radio’s “Politics, Policy, Power and Law.”

https://www.bloomberg.com/news/audio/2018-02-26/democrats-release-nunes-memo-rebuttal-audio

William C. Banks Expertise in Demand as FISA Court Remains in the News

INSCT Director William C. Banks has long studied the Foreign Intelligence Surveillance Act (FISA) and the FISA Court (or FISC), which was established under FISA in 1978. The FISA Court oversees requests, often by the FBI, for warrants to surveil foreign intelligence agents and, occasionally, US persons suspected of working with foreign agents.

One such US person is former advisor to President Donald Trump, Carter Page, who is alleged to have long worked with Russia intelligence operatives and may have been under FISA warrant surveillance as early as 2014. The FISA warrants against Page, and the intelligence used to apply for those warrants, are in the national spotlight thanks to a memo largely written by Devin Nunes, Chair of the House Permanent Select Committee on Intelligence, alleging that the FBI misled the FISA Court as to the partisan political nature of some of that intelligence.

Media outlets, including The New York Times and WIRED, reached out to Banks to gauge his opinion on the Nunes allegations, to explain how the FISA process works, and to understand what this controversy means for the Trump presidency and the US intelligence community.

House intelligence committee votes to release Democrats’ intel memo (CNY Central | Feb. 5, 2018)

The fact that any of the information about the FISA order against Carter Page came out to begin with is “extraordinary,” said William Banks, director of the Institute for National Security and Counterterrorism at Syracuse University.

“It’s unfortunate that anything came out. It damaged the intelligence community and the Department of Justice and the FBI,” he said. But he still supports the release of the Democratic memo in order to “balance the record.”

Banks continued, “I think the intelligence community is completely aghast and abhors what’s going on here, whether it’s coming from the Democrats or the Republicans.”

Devin Nunes Promises ‘Phase Two’ of Investigation (Bloomberg Radio | Feb. 5, 2018) 

William Banks, a professor at Syracuse University Law School, discusses the so-called Nunes memo, which president Trump said over the weekend “totally” vindicated him of any collusion with Russia or obstruction of justice in special counsel Robert Mueller’s ongoing investigation.

Reading Between the Lines of the Devin Nunes Memo (WIRED | Feb. 2, 2018)

… “The dossier and Steele and all that—it’s cherrypicking a piece of what was probably a 50, or 60, or 100 page application,” says William C. Banks, founder of the Institute for National Security and Counterterrorism at Syracuse University College of Law …

How to Get a Wiretap to Spy on Americans, and Why That Matters Now (The New York Times | Jan. 30, 2018)

William C. Banks, a Syracuse University law professor who has studied the FISA Court, said that without reviewing all the documents involved in the surveillance request, it was impossible to judge the importance of how Mr. Steele was described. But he emphasized that the government had broad leeway in seeking FISA warrants.

“Carter Page was doing business in Russia, talking to Russian diplomats who may have been involved in intelligence activities directed at the United States,” Mr. Banks said. “Game over. The standards are incredibly open-ended” …

 

“Cherrypicking”: William C. Banks Weighs in on the Nunes Memo in WIRED

READING BETWEEN THE LINES OF THE DEVIN NUNES MEMO

(WIRED | Feb. 2, 2018) AFTER WEEKS OF Twitter users demanding Congress #ReleaseTheMemo, the House Intelligence Committee—chaired by Republican Devin Nunes—disclosed the contentious four-page report to the public Friday, after President Donald Trump signed off on its release. And while, as expected, the document alleges that federal law enforcement officials abused their surveillance powers in investigating the Trump campaign’s ties to Russia, national security experts see something very different. In fact, they see almost nothing at all—or at least not enough to make any definitive judgement calls.

“The dossier and Steele and all that—it’s cherrypicking a piece of what was probably a 50, or 60, or 100 page application.”

As had been rumored, the memo details supposedly improper actions by law enforcement officials in seeking a warrant to wiretap Carter Page, one of Trump’s campaign advisors. But understanding what the memo says—and, critically, doesn’t say—requires familiarity with the secretive Foreign Intelligence Surveillance Court, which governs requests made under the Foreign Intelligence Surveillance Act, better known as FISA. Those who know the law best say the memo is largely bunk …

… “The dossier and Steele and all that—it’s cherrypicking a piece of what was probably a 50, or 60, or 100 page application,” says William C. Banks, founder of the Institute for National Security and Counterterrorism at Syracuse University College of Law

FISA applications also have to go through an in-depth protocol known as the “Woods Procedure,” during which the intelligence community needs to verify every single fact. For example, if the application says a person was on a specific train at a specific time, the agent would need to show Department of Justice lawyers how they found out that information. There are other oversight mechanisms as well. For example, applications need to be first certified by the Director or Deputy Director of the FBI, as well as the Attorney General, Deputy Attorney General, or Assistant Attorney General for the National Security Division. In other words, FISA warrants are reviewed at the highest levels, which is part of the reason Nunes’ allegations are so explosive—they implicate multiple parties at the very top of the US intelligence apparatus …

… “I can’t recall any instance in 40 years when there’s been a partisan leaning of a FISA court judge when their opinions have been released,” says Banks …

To read the full article, click here.

 

“Game Over”: William C. Banks Discusses FISA, Wiretapping, & Carter Page With The New York Times

How to Get a Wiretap to Spy on Americans, and Why That Matters Now

(The New York Times | Jan. 30, 2018) A fight over a classified memo written by Republican staffers on the House Intelligence Committee, which portrays as scandal-draped the early stages of the Justice Department investigation into links between the Trump campaign and Russia, is heightening interest in legal issues about intelligence wiretap applications.

“Carter Page was doing business in Russia, talking to Russian diplomats who may have been involved in intelligence activities directed at the United States.”

On Monday, the committee, which is led by Representative Devin Nunes of California, voted along party lines to set in motion a process to soon make the memo public under an obscure House rule, while rejecting a request to simultaneously disseminate a rebuttal memo produced by the committee’s Democrats.

According to people who have read it, the Republicans’ memo describes what they portray as an abuse of government surveillance powers. It centers on a classified wiretap application the government submitted to a judge in the fall of 2016 that targeted Carter Page, a onetime Trump campaign official who had traveled to Russia in July 2016 and was preparing to return there that December, along with renewal applications.

What is a FISA wiretap?

The Foreign Intelligence Surveillance Act, or FISA, signed into law in 1978, requires the government, when eavesdropping on communications on domestic soil for national security purposes, to obtain permission from a judge on the Foreign Intelligence Surveillance Court. The judge must agree that the target is probably an agent of a foreign power and will probably use the specific email accounts or phone numbers that the Justice Department wants to wiretap …

… David Kris, who ran the Justice Department’s National Security Division early in the Obama administration and helped write a book about FISA, says that when the department submits material from sources to the court, “it should also include information that would cast material doubt on their credibility — sources often come with bias or baggage of one sort or another.”

But, he said, “there is no requirement for elaborate accounting: Courts routinely accept and uphold affidavits that generally describe a source’s shortcomings” without every specific detail.

 William C. Banks, a Syracuse University law professor who has studied the FISA Court, said that without reviewing all the documents involved in the surveillance request, it was impossible to judge the importance of how Mr. Steele was described. But he emphasized that the government had broad leeway in seeking FISA warrants.

“Carter Page was doing business in Russia, talking to Russian diplomats who may have been involved in intelligence activities directed at the United States,” Mr. Banks said. “Game over. The standards are incredibly open-ended”  …

To read the full article, click here.

“The Foundation of Intelligence Gathering”: Bloomberg Discusses FISA Act Extension with William C. Banks

House Passes FISA Rules After White House Uncertainty

William Banks, a professor at Syracuse University Law School, discusses the House’s passage of an extension to the Foreign intelligence Surveillance Act, otherwise known as FISA, which has seen unsteady support from the President, who says he now supports the warrantless spying bill. He speaks with Bloomberg’s June Grasso on Bloomberg Radio’s “Politics, Policy, Power and Law.”