FISA, Flynn, and Failure

We're talking about the FISA process, Retired General Michael Flynn, and the failure of the American Health Care Act. 

The Pearls

We comfort ourselves about our miserable election predictions by noting that we predicted that the American Health Care Act would not make it through the House of Representatives. And it didn't. Big winners: the American people for not being subjected to a half-baked, not-really-about-health-care-health-care-bill. Big losers: Paul Ryan, Donald Trump, Republicans generally

Sadly, we have two incidents of violence to acknowledge. A British man, Khalid Masood, rammed his vehicle into a crowd at Westminster Bridge in London after stabbing a police officer. His connections to Saudi Arabia have police still investigating his possible motives. On Sunday morning, a dispute escalated into a shooting in a Cincinnati, Ohio, night club, leaving one person dead and 15 injured. Our prayers are with everyone impacted in London and Cincinnati. 

For our compliments to the other party, Sarah tipped her hat to the Freedom Caucus for standing their ground in opposition to the AHCA. Beth complimented the Democratic lawmakers behind the Making Access Records Available to Lead American Government Openness Act (the MAR-A-LAGO Act), which would require the White House to publish its visitor logs and mandate the release of visitor logs when the President conducts business...elsewhere. 

The Suit

We start with a mini-primer on the Foreign Intelligence Surveillance Act ("FISA"), which was enacted in 1978 to protect Americans’ privacy in the midst of counter-terrorism efforts. A law enforcement training white paper helped us significantly in understanding key provisions of FISA. FISA was enacted to limit the presidents' power and to create a judicially-manageable standard for issuing warrants in national security investigations. 

The key provisions of FISA were: 

  1. Non-criminal electronic surveillance can only occur for the purpose of collecting foreign intelligence and foreign counterintelligence
  2. Foreign powers and agents of foreign powers could be targeted for electronic surveillance (foreign powers and agents of foreign powers are defined in the statute—explicitly says “non US persons” — US persons are citizens, legal permanent residents, US corporations, unincorporated associates with a substantial number of members who are citizens or lawful permanent residents) 
  3. The government needs probable cause to conduct surveillance (and set a probable cause standard)
  4. Established foreign intelligence surveillance courts (FISC) at the district and appellate levels to review applications for warrants under the act
  5. The government can only conduct electronic surveillance in the US for the purpose of collecting foreign intelligence or foreign counterintelligence pursuant to a warrant issued by a FISC or in an emergency with approval from the attorney general provided that a warrant is sought within 24 hours 

In 1995, FISA was expanded to include physical searches (which meant a recognition that the president’s power to order physical searches in the interest of nat security is limited)  In 1998, provisions were added on pen registers and trap and trace - includes phone calls, email, and all electronic forms of communication. These provisions specifically prohibit investigation of US persons for activities protected by the 1st Amendment. 

Often the collection of information under FISA leads to collection of evidence of a domestic crime (not the intention of the surveillance). The FBI is obligated by the statute and executive order to pass that evidence the appropriate law enforcement agency. But, there have been many challenges to evidence collected under FISA in criminal cases because of 4th and 5th Amendment concerns. These challenges led to the establishment of the “primary purpose” test and “the wall” — the intelligence community became very careful about ensuring that applications for FISA warrants demonstrated that the primary purpose of surveillance was foreign intelligence or foreign counterintelligence — not law enforcement. Law enforcement and intel community have struggled a little with the appropriate sharing of information. 

This information-sharing struggle was directly confronted and significantly altered by the October 2001 passage of the Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (the PATRIOT Act).

Under the PATRIOT Act, the intelligence community's burden on a FISA warrant application is to show that collection of foreign intelligence or counterintelligence is a significant purpose rather than the purpose of the activity.  In 2002, the Office of Intelligence Policy and Review (part of the DOJ) asked the FISC to remove “the wall” (separating law enforcement and foreign intel collection). The FISC declined and wrote its own minimization standards, trying to maintain a balance between effectuating the PATRIOT Act and limiting the very intrusive methods available under FISA. The DOJ appealed to the US Foreign Intelligence Surveillance Court of Review. The Court of Review said that the FISC was wrong and was trying to end run the PATRIOT Act. It found that the wall did not survive the PATRIOT Act. 

Now, disclosure and use of FISA information: 

  1. Must be for a lawful purpose
  2. Must be accompanied by an admonishment that FISA derived info can only be used in a criminal proceeding with the advanced authorization of the Attorney General 
  3. The government has to give notice to the criminal defendant and the Court if it is going to use FISA derived info in a criminal proceeding (so the defendant has a chance to contest the use of the evidence)
  4. There are no exceptions to the AG having to approve disclosure in advance, and the government never produces a copy of the application to obtain a FISA warrant. 

In 2008, FISA amendments were passed. These amendments included section 702, which allows the government to collect email and other communications of non-US persons. Over 25% of the NSA’s intelligence relies on information obtained under 702. Section 702 expires at the end of 2017 and needs to be reauthorized — that’s what House Republicans were referring to in the Comey/Rogers hearing. This section has been widely criticized but not well understood. Surveillance under Section 702 can only be directed at specific foreign targets outside the US. It doesn’t allow for bulk collections. There are two important aspects of the Section 702 program: PRISM and upstream collection. Section 702, FISC, and intelligence agencies use minimization standards to protect incidental collection of information, including masking

After we discussed the process for collecting intelligence, we discussed the facts surrounding the resignation of Michael Flynn, who had registered with the Justice Department as a "foreign agent" because of a $530,000 contract from August - November 2016 with Inovo BV, which is owned by a Turkish businessman. It has been reported that Flynn's attorneys told the Trump campaign twice that he was going to have register as a foreign agent. 

We also discuss reported from former CIA Director James Woolsey regarding Flynn's presence in a meeting with Turkish officials about the extradition of Fethullah Gulen, a cleric accused by the Turkish government of orchestrating a failed coup attempt. Finally, we discuss reports from the weekend that Flynn might now be cooperating with the FBI to aid in the investigation into possible coordination between the Trump campaign and Russia. 

The Heels

We start talking food in the Heels since Beth has been cooking up a storm after her week with the flu. We mention amazing asparagus pizza, blueberry dumplings, and Beth's cobbler creation. Sarah recommended two books she just finished up -- A Piece of the World and The War that Saved My Life.