It’s hard to keep up with the memos, interviews, and leaks coming out of Washington DC so we take a painstaking look at what we do and don’t know about the memo and the Mueller investigation
Thanks to our sponsor: Casper Mattress
First up, we discuss how we think about the economy as we approach another government shutdown this week, including whether or not we should pour more money into the Department of Defense considering the results of the latest audit.
To compliment individuals who aren't members of our respective parties, Sarah praises recently retiring and suddenly refreshingly honest Representative Trey Gowdyl. Beth compliments Senator Chris Coons on his work on a bipartisan immigration bill.
For our main segment, 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:
- Non-criminal electronic surveillance can only occur for the purpose of collecting foreign intelligence and foreign counterintelligence
- 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)
- The government needs probable cause to conduct surveillance (and set a probable cause standard)
- Established foreign intelligence surveillance courts (FISC) at the district and appellate levels to review applications for warrants under the act
- 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:
- Must be for a lawful purpose
- 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
- 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)
- 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.
We then review the major actions of taken so far by Robert Mueller during the course of his investigation. We then discuss the House Permanent Select Committee on Intelligence which was created in 1977 to oversee the US intelligence community. It was created in response to the Church and Pike Committees investigating the CIA and other intelligence agencies in response to Watergate. Because the Church and Pike Committees found evidence of spying on American citizens, illegal wiretapping, and coverups, the Senate and the House established intelligence committees to prevent future abuses of power. The HPSCI has 22 members, including at least one member from Appropriations, Armed Services, Judiciary, and Foreign Affairs and is chaired by Representative Devin Nunes, recently cleared of an ethics investigation regarding the release of classified information. Last, we discuss the infamous memo and what we think it does (and doesn't) mean.
We end with a discussion on what's on our minds outside politics - mainly the Super Bowl and America's obsession with football.