The US Court of Appeals for the Ninth Circuit has ruled that the National Security Agency surveillance program, which former NSA contractor Edward Snowden blew the whistle on, was unlawful:
Surveillance
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 …
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 …
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 …
Motherboard Speaks to William C. Banks About Social Media Surveillance
Pentagon Wants to Predict Anti-Trump Protests Using Social Media Surveillance
(Motherboard | Oct. 30, 2018) The United States government is accelerating efforts to monitor social media to preempt major anti-government protests in the US, according to scientific research, official government documents, and patent filings reviewed by Motherboard.
“One reason that doctrines are updated is due to changes in technology—military intelligence capabilities will adapt to new technologies, the power of social media, new cybersecurity capabilities.”
The social media posts of American citizens who don’t like President Donald Trump are the focus of the latest US military-funded research. The research, funded by the US Army and co-authored by a researcher based at the West Point Military Academy, is part of a wider effort by the Trump administration to consolidate the US military’s role and influence on domestic intelligence.
The vast scale of this effort is reflected in a number of government social media surveillance patents granted this year, which relate to a spy program that the Trump administration outsourced to a private company last year. Experts interviewed by Motherboard say that the Pentagon’s new technology research may have played a role in amendments this April to the Joint Chiefs of Staff homeland defense doctrine, which widen the Pentagon’s role in providing intelligence for domestic “emergencies,” including an “insurrection” …
… How far that caution applies in the context of a DOD led by a Trump appointee is an open question. But Aftergood also described the amendments as a potential danger to American democracy: “The whole subject bears careful monitoring, since it potentially poses a challenge to civilian control of government and to the integrity of democratic institutions,” he said.
I also spoke to William C. Banks, distinguished professor and founding director of the Institute for National Security and Counterterrorism at Syracuse University’s College of Law, who largely agreed with Aftergood’s assessment. “There is cause for concern due to the ambiguities embedded in the law and the federal guidance supplied through civilian and military agencies on homeland defense,“ Banks warned. “It is not unusual for doctrines like this to be quietly updated and they do this almost every year. But these changes are always worth monitoring due to the risk to democracy.”
I asked Banks, co-author of Soldiers on the Homefront: The Domestic Role of the American Military, about the doctrine’s description of an “insurrection” as a “homeland defense“ issue.
“The US military role in the homeland is not new, but in this case there’s a tension between DSCA [Defense Support for Civil Authorities] and homeland defense, because in one setting civilians are in charge, and in another setting the military are in charge,” he said. “The changes to doctrine are not dramatic, but they could make it more likely, maybe inevitable, that those jurisdictional issues might come together or clash in some way.”
The outcome of such a clash could end up putting Trump’s Defense Secretary in charge of a response to a domestic emergency categorized by Trump as an “insurrection.“ Taken in tandem with the US military’s sudden interest in predicting anti-Trump protests after the 2016 elections, the Pentagon’s upgraded homeland defense doctrine seems to be part of a wider effort by the Trump administration to prepare for domestic civil unrest in coming months and years.
Indeed, according to Banks, the changes to the doctrine in April could well have occurred as an effort to adapt to the technological developments in social media surveillance under the Trump administration described earlier in this story.
“One reason that doctrines are updated is due to changes in technology—military intelligence capabilities will adapt to new technologies, the power of social media, new cybersecurity capabilities,” he said. “The more we learn about those, the more we can envisage new threats and new opportunities to address them. So this new research on social media surveillance is exactly the kind of thing that could prompt changes in doctrine. The Pentagon’s support for this kind of research is concerning and should be closely monitored” …
“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 …
Carpenter v. US: Gorsuch’s Dissent Re-Ignites Criticism of the Third-Party Doctrine
By Lauryn Gouldin
One interesting aspect of the Court’s decision in Carpenter v. United States is Justice Neil Gorsuch’s dissent. While many will, no doubt, cast the Carpenter decision as a 5-4 decision narrowing the reach of the Court’s broadly applied and long-criticized third-party doctrine, attentive readers will see that the result is a bit more complex. For those trying to predict where the justices stand on Fourth Amendment issues going forward, this is better characterized as a 5-3-1 decision, with Justice Gorsuch standing alone.
“Like Justice Thomas, Justice Gorsuch is skeptical of the Court’s Katz v. US jurisprudence and its efforts to ascertain (or worse, to dictate) what the community views as a ‘reasonable expectation of privacy.’”
Chief Justice John Robert’s majority opinion, joined by the Court’s four liberal justices (justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan), marks a significant narrowing of the third-party doctrine—significant, in part, because it is the first case where a majority of the Court acknowledges that the doctrine has meaningful limitations. But it is also a measured decision. Many encouraged the Court to use Carpenter to eliminate the third-party doctrine altogether. The majority, however, clearly declined to go that far and claimed that its decision was “a narrow one.”
Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito writing together (and separately) are clearly persuaded that the government conduct in this case—the order to a cell phone company to search company records for data collected about a subscriber’s past locations—was not a “search” under the meaning of the Fourth Amendment.
Justice Gorsuch’s take on that basic question is different. Like Justice Thomas, Justice Gorsuch is skeptical of the Court’s Katz v. US jurisprudence and its efforts to ascertain (or worse, to dictate) what the community views as a “reasonable expectation of privacy.” Justice Gorsuch clearly disagrees with the other dissenters about the possibility of a Fourth Amendment violation on the facts presented. In his dissenting opinion, Justice Gorsuch repeatedly suggests that he sees government overreaching (and a potential Fourth Amendment violation) in the factual background of the case. He unmistakably criticizes the third-party doctrine, stating, for example, that “[c]onsenting to give a third party access to private papers that remain my property is not the same thing as consenting to a search of those papers by the government.” Further, he agrees with the majority that “the rationale of Smith and Miller is wrong.”
Despite these concerns about the doctrine and about the underlying question, Justice Gorsuch dissents from the majority opinion, ruling against Carpenter on procedural grounds. In Gorsuch’s view, Carpenter failed to assert and develop essential property-based, positive law arguments. Justice Gorsuch even suggests these arguments might have persuaded him to rule in Carpenter’s favor (“In these circumstances, I cannot help but conclude—reluctantly—that Mr. Carpenter forfeited perhaps his most promising line of argument.”) Justice Gorsuch says, explicitly, that it is “entirely possible a person’s cell-site data could qualify as his papers or effects under existing law.”
Lauryn Gouldin is Associate Professor of Law at Syracuse University College of Law.
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.