[Going back more than 20 years, FISA court rulings have complained
of FBI agents lying to the court and abusing the law. As long as the
FBI periodically promises to repent, the FISA court entitles them to
continue decimating the Fourth Amendment.]
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FISA IS THE “TRUST ME, CHUMPS!” SURVEILLANCE ACT  
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James Bovard
May 26, 2023
CounterPunch
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_ Going back more than 20 years, FISA court rulings have complained
of FBI agents lying to the court and abusing the law. As long as the
FBI periodically promises to repent, the FISA court entitles them to
continue decimating the Fourth Amendment. _

, Photo: James Bovard.

 

A Foreign Intelligence Surveillance Court opinion
[[link removed]] released
last week revealed that the FBI violated the constitutional rights of
278,000 Americans in 2020 and 2021 with warrantless searches of their
email and other electronic data. For each American that the FISA
court permitted the FBI
[[link removed]] to
target, the FBI illicitly surveiled almost a thousand additional
Americans. This is only the latest federal surveillance scandal
stretching back to the years after 9/11.

The FISA law was enacted in 1978 to curb the rampant illegal political
spying exposed during the Richard Nixon administration. After the 9/11
attacks, the George W. Bush administration decided that the president
was entitled to order the National Security Agency to vacuum up
Americans’ emails and other data without a warrant. After _The New
York Times_ exposed the surveillance scheme in late 2005, Attorney
General Alberto Gonzales announced that “the president has the
inherent authority under the Constitution, as commander in chief, to
engage in this kind of activity.” Gonzales apparently forgot the
congressional impeachment proceedings against President Nixon. The
Bush White House also asserted that the September 2001
“Authorization to Use Military Force” resolution Congress passed
entitled Bush to tap Americans’ phones. But if the authorization
actually allowed the president to do whatever he thinks necessary on
the homefront, Americans had been living under martial law.

Federal judges disagreed with Bush’s prerogative to obliterate
American privacy. The result was a 2008 FISA reform that authorized
the feds to continue commandeering vast amounts of data. But under
Section 702 of that law, the FBI was permitted to conduct warrantless
searches of that stash for Americans’ data only to seek foreign
intelligence information or evidence of crime.

President Barack Obama responded to the new law by sharply expanding
the NSA’s seizures of Americans’ personal
data. _The_ _Washington Post _characterized Obama’s first term as
“a period of exponential growth for the NSA’s domestic
collection.” Obama’s Justice Department thwarted court challenges
to the surveillance, thereby permitting the White House to claim that
it was respecting Americans’ rights and privacy.

Edward Snowden blew the roof off the surveillance state with his
disclosures starting in June 2013. But there was no reason to presume
that federal crime sprees were not occurring before Snowden blew the
whistle. Professor David Rothkopf
[[link removed]] explained
in 2013 how FISA’s Section 702 worked:  “What if government
officials came to your home and said that they would collect all of
your papers and hold onto them for safe-keeping, just in case they
needed them in the future. But don’t worry…they wouldn’t open
the boxes until they had a secret government court order…sometime,
unbeknownst to you.”

The 2008 FISA amendments and Section 702 snared vast numbers of
hapless Americans in federal surveillance nets. _The_ _Washington
Post_ analyzed a cache of 160,000 secret email conversations/threads
(provided by Snowden) that the NSA intercepted and found that nine out
of ten account holders were not the “intended surveillance targets
[[link removed]] but
were caught in a net the agency had cast for somebody else.” Almost
half of the individuals whose personal data was inadvertently
commandeered were U.S. citizens. The files “tell stories of love and
heartbreak, illicit sexual liaisons, mental-health crises, political
and religious conversions, financial anxieties and  disappointed
hopes,” the _Post_ noted. If an American citizen wrote an email
in a foreign language, NSA analysts assumed they were foreigners who
could be surveilled without a warrant.

Snowden also leaked secret court rulings that proved that the FISA
Court had “created a secret body of law giving the National Security
Agency the power to amass vast collections of data on
Americans,” _The_ _New_ _York Times_reported in 2013. FISA
judges rubberstamped massive seizures of Americans’ personal data
that flagrantly contradicted Supreme Court rulings on the Fourth
Amendment. The _Times_ noted that the FISA court had “become
almost a parallel Supreme Court, serving as the ultimate arbiter on
surveillance issues,” and almost always giving federal agencies all
the power they sought.

Unfortunately, Snowden’s courageous disclosures did not stop the
outrages. The heavily-redacted 2022 opinion finally released Friday
revealed that the FBI wrongly searched almost 300,000 Americans’
online lives. And this was on top of the roughly 3.4 million
warrantless searches of Americans in 2021 via Section 702 that the FBI
conducted that the Justice Department claimed was justified.

The latest disclosure from the FISA court
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that the FBI presumed that any American suspected of supporting the
January 6, 2021 protests forfeited his constitutional rights. Roughly
2,000 pro-Trump protestors (including an unknown number of undercover
agents and informants) entered the Capitol that day. But an FBI
analyst exploited FISA to unjustifiably conduct searches on 23,132
Americans citizens “to find evidence of possible foreign influence,
although the analyst conducting the queries had no indications of
foreign influence,” according to FISA Chief Judge Rudolph Contreras.
The court ruling did not disclose the standards (if any) the FBI used
for its warrantless January 6 searches. Did Twitter retweets suffice?

The FBI exploited FISA to target 19,000 donors to the campaign of a
candidate who challenged an incumbent member of Congress. An FBI
analyst justified the warrantless searches by claiming “the campaign
was a target of foreign influence,” but even the Justice Department
concluded that almost all of those searches violated FISA
rules.Apparently, merely reciting the phrase “foreign influence”
suffices to nullify Americans’ rights nowadays. (In March, Rep.
Darin LaHood (R-IL) revealed that he had been wrongly targeted
[[link removed]] by
the FBI in numerous FISA 702 searches.)

The FBI conducted secret searches of the emails and other data of 133
people arrested during the protests after the killing of George Floyd
in 2020.

The FBI conducted 656 warrantless searches to see if they could find
any derogatory information on people they planned to use as
informants. The FBI also routinely conducted warrantless searches
on “individuals listed in police homicide reports, including
victims, next-of-kin, witnesses, and suspects.” Even the Justice
Department complained those searches were improper.

Judge Contreras lamented: “Compliance problems with the querying of
Section 702 information have proven to be persistent and
widespread.” The FBI responded to the damning report with piffle:
“We are committed to continuing this work and providing greater
transparency into the process to earn the trust of the American people
and advance our mission of safeguarding both the nation’s security,
and privacy and civil liberties, at the same time.”

But this is only the latest in a long series of FBI FISA scandals:

In 2002, the FISA court revealed that FBI agents had false or
misleading claims in 75 cases
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a top FBI counterterrorism official was prohibited from ever appearing
before the court again.

In 2005, FISA chief judge Colleen Kollar-Kotelly proposed requiring
FBI agents to swear to the accuracy of the information they presented;
that never happened because it could have “slowed such
investigations drastically,” the Washington Post reported
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So FBI agents continued to have a license to exploit FISA secrecy to
lie to the judges.

In 2017, a FISA court decision included a 10-page litany of FBI
violations, which “ranged from illegally sharing raw
intelligence with unauthorized third parties
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accessing intercepted attorney-client privileged communications
without proper oversight.”

In 2018, a FISA ruling condemned the FBI for ignoring limits on
“unreasonable searches.” As _The New York Times_ noted,
“F.B.I. agents had carried out several large-scale searches for
Americans who generically fit
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broad categories…so long as agents had a reason to believe that
someone within that category might have relevant information. But
[under FISA] there has to be an individualized reason to search for
any particular American’s information.” The FBI treated the FISA
repository like the British agents treated general warrants in the
1760s, helping spark the American Revolution.

In April 2021, the FISA court reported that the FBI
conducted warrantless searches
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the data trove for “domestic terrorism,” “public corruption and
bribery,” “health care fraud,” and other targets—including
people who notified the FBI of crimes and even repairmen entering FBI
offices. If you sought to report a crime
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the FBI, an FBI agent may have illegally surveilled your email. Even
if you merely volunteered for the FBI “Citizens Academy” program,
the FBI may have illegally tracked all your online activity. As I
tweeted after that report came out, “The FISA court has gone from
pretending FBI violations don’t occur to pretending violations
don’t matter. Only task left is to cease pretending Americans have
any constitutional right to privacy.” FISA court Chief Judge James
Boasberg lamented “apparent widespread violations” of the legal
restrictions for FBI searches but shrugged them off
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permitted the scouring of Americans’ personal data to continue.

The FISA court treats the FBI like liberal judges treat serial
shoplifters. Going back more than 20 years, FISA court rulings have
complained of FBI agents lying to the court and abusing the law. As
long as the FBI periodically promises to repent, the FISA court
entitles them to continue decimating the Fourth Amendment.

Federal intelligence agencies refuse to even estimate how many
Americans’ private data has been rounded up in government databases.
There is no reason to presume that the feds have disclosed all their
FISA wrongdoing. Prior to Edward Snowden’s leaks, the feds probably
admitted less than 1% of federal surveillance abuses.

Section 702 will expire this year unless Congress reauthorizes that
provision of the law. But the FBI’s perpetual crime wave has
created a hornet’s nest on Capitol Hill. Rep. Andy Biggs (R-AZ)
asked: “How much longer must we watch the FBI brazenly spy
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Americans before we strip it of its unchecked authority?” Rep. Mike
Garcia (R-CA) declared, “We need a pound of flesh
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know someone has been fired.” Even Rep. Jerry Nadler (D-NY), the
ranking Democrat on the House Judiciary Committee, opposes
reauthorizing
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702 without fundamental reforms.

But will Congress finally stop the federal spying spree on Americans?
As I tweeted on December 27, 2012, “FISA Renewal: Only a fool would
expect members of Congress to give a damn
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rights and liberties.” Without radical reform, FISA should be
renamed the “Trust Me, Chumps!” Surveillance Act.

_An earlier version of this piece was published by the Libertarian
Institute_

_JAMES BOVARD is the author of Attention Deficit Democracy
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Bush Betrayal
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and Tyranny
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and other books. Bovard is on the USA Today Board of Contributors.
He is on Twitter at @jimbovard. His website is at www.jimbovard.com
[[link removed]]  This essay was originally published
by Future of Freedom Foundation [[link removed]]._

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* FISA
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* Fourth Amendment
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* FBI
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