The Foreign Intelligence Surveillance Court’s presiding judge signed off on the sweeping surveillance powers held by federal spy agencies, a newly declassified yearly report shows, despite finding “widespread violations” of the FBI’s rules related to handling and searching the massive number of emails and other intercepts collected without a warrant.
Judge James Boasberg, the top judge on the FISA Court, issued a 67-page ruling in November, which was made public on Monday, dealing with FBI analyst searches of information on U.S. citizens in emails and other data sources that the National Security Agency has collected. Despite a number of problems highlighted by the judge, similar to those highlighted in a December 2019 ruling by the FISA Court, Boasberg gave the green light to the NSA’s warrantless surveillance program, authorized under Section 702 of the FISA Amendments Act, for another year.
The program stems from U.S. tech companies assisting the NSA overseas with intercepting the communications of foreign targets — some of whom are communicating with U.S. citizens. Despite improper searches by the bureau, the judge largely gave the FBI a pass, arguing many of the violations occurred before newly implemented reforms from the bureau were put in place.
“While the Court is concerned about the apparent widespread violations of the querying standard … it lacks sufficient information at this time to assess the adequacy of the FBI system changes and training, post-implementation,” Boasberg concluded. “Under these unique circumstances, and in the absence of evidence to the contrary, the Court is willing to again conclude that the improper queries described above do not undermine it's prior determination that, with implementation of the documentation requirement, the FBI's querying and minimization procedures meet statutory and Fourth Amendment requirements.”
The judge said that during an oversight review of a redacted FBI program, the government “discovered 40 queries that had been conducted in support of predicated criminal investigations relating to healthcare fraud, transnational organized crime, violent gangs, domestic terrorism involving racially motivated violent extremists, as well as investigations relating to public corruption and bribery [redacted].” The judge said that “none of these queries was related to national security.”
Boasberg also said, “Another analyst ran a ‘batch query’ using [redacted] accounts as query terms in connection with predicated criminal investigations relating to domestic terrorism that returned 33 Section 702-acquired products,” but the FBI was “unable to confirm whether any products were opened.”
DOJ Inspector General Michael Horowitz released a report in December 2019 that criticized the Justice Department and the FBI for at least 17 “significant errors and omissions” related to the FISA surveillance of former Trump campaign associate Carter Page, who was never charged with a crime and denied any wrongdoing, as well as the heavy reliance on British ex-spy Christopher Steele’s discredited Democratic-funded dossier to obtain the wiretap authority.
In March 2020, Boasberg ordered that “no DOJ or FBI personnel under disciplinary or criminal review relating to their work on FISA applications shall participate in drafting, verifying, reviewing, or submitting such applications to the Court.”
Boasberg said in his November ruling about the broader FISA program that the FISA Court concluded that the targeting procedures by the FBI and NSA are “reasonably designed” to ensure searches are “limited to targeting persons reasonably believed to be located outside the United States.”
The judge said, however, that between April 2019 and July 2019, a “technical information specialist in the [redacted] who was conducting limited background investigations” conducted “approximately 124 queries of Section 702-acquired information using the names and other identifiers” of people in three main categories: individuals who “had requested to participate in FBI's Citizens Academy – a program for business, religious, civic, and community leaders designed to foster greater understanding of the role of federal law enforcement in the community;” people who “needed to enter the field office in order to perform a particular service, such as a repair;” and individuals who “entered the field office seeking to provide a tip or to report that they were victims of a crime.”
Boasberg, who is also a judge for the U.S. District Court for the District of Columbia, denied in January the Justice Department's efforts to seek up to six months behind bars for ex-FBI lawyer Kevin Clinesmith, who pleaded guilty in special counsel John Durham’s Trump-Russia investigation, instead giving him probation, 400 hours of community service, and no fine.
Clinesmith admitted in August that he edited a CIA email in 2017 to state that Page was “not a source” for the CIA when it had told the bureau on multiple occasions that Page had been an “operational contact” for the agency.
Durham had argued that Clinesmith’s “deceptive conduct … was antithetical to the duty of candor and eroded the FISC’s confidence in the accuracy of all previous FISA applications worked on by the defendant,” and his deception “fueled public distrust of the FBI and of the entire FISA program itself.”
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