How FISA Abuse Undermines Police Powers That Keep Americans Safe

How FISA Abuse Undermines Police Powers That Keep Americans Safe

Did American technology slip away in the luggage of Chinese spies because bureaucrats in Washington couldn’t resist spying on their political opponents?
Adam Mill
By

During the summer of 2013, Weiqiang Zhang hosted a small dinner party at his house in Manhattan, Kansas. Zhang had a plan to steal and smuggle tens of millions of dollars in technology from Kansas back to China using his dinner guests.

On August 7, 2013, acting on intelligence, U.S. Customs and Border Protection officers intercepted the smuggler-guests and recovered the stolen contraband: a few seeds of rice. Zhang worked as a rice breeder for Ventria Bioscience in Junction City, 30 minutes away from Manhattan. Ventria discovered how to genetically engineer rice to contain iron-binding protein found in human milk.

This technology cost Ventria millions of dollars and years of patience to develop. Zhang attempted to sabotage these efforts, though, by slipping these stolen seeds to his dinner guests, who were representatives for the Chinese crop institute.

Fighting An Intellectual Property Battle

Great intelligence and wonderful trial work led to the 2017 conviction of Zhang and the prevention of intellectual property loss of incalculable value. America owes a debt to the invaluable public servants at the FBI’s Kansas City field office and in the Wichita-based U.S. attorney’s office.

Kansas U.S. Attorney Stephen McAllister noted, “Ventria invested years of research and tens of millions of dollars to create a new and beneficial product. It is vital that we protect such intellectual property from theft and exploitation by foreign interests.” This is what it looks like when public servants use the powerful tools of intelligence and surveillance for their intended purposes.

As Assistant U.S. Attorney Scott Rask prepared the Zhang case for trial in late 2016, far above him, in the rarefied upper reaches of the Department of Justice (DOJ), politicized attorneys abused some of the same tools that America needs to catch future such spies. This abuse invoked the wrath of the court and caused irreparable harm to the special trust the American people place in law enforcement.

Section 702 of the Foreign Intelligence Surveillance Act (FISA) permits the government to target foreign persons for surveillance located outside the United States for the purpose of acquiring foreign intelligence information. Picture a searchable database with everyone’s internet search history, every email, text message, voice mail, and possibly voice-to-text transcripts of every phone call.

That database, which includes all Americans, is what is believed to be in the possession of the National Security Agency (NSA), and it’s critical that constitutional safeguards protect ordinary Americans from nosy government officials abusing this powerful database.  As Jeff Carlson explained:

Section 702 is part of the broader FISA Act and permits the government to target for surveillance foreign persons located outside the United States for the purpose of acquiring foreign intelligence information.

Instead of issuing individual court orders, Section 702 requires the Attorney General and the Director of National Intelligence (DNI) to provide the Foreign Intelligence Surveillance Court (FISC) with annual certifications that specify categories of foreign intelligence information the government is authorized to acquire pursuant to Section 702.

The Attorney General and the Director of National Intelligence must also certify that Intelligence Community elements will follow targeting procedures and minimization procedures that are approved by the FISC as part of the annual certification.

Misuse of FISA Databases

Carlson notes that in January 2016, the NSA inspector general issued a report exposing the misuse of FISA surveillance databases. Officials with access to the databases had performed queries that were not properly limited to respect the constitutional rights of Americans caught up in the surveillance net.

In March 2016, it was discovered that the FBI disclosed raw FISA information, including but not limited to Section 702-acquired information to an entity that was “largely staffed by private contractors” and that certain contractors had “access to raw FISA information on FBI storage systems and that this access “went well beyond what was necessary to respond to the FBI’s requests.” (See the FISC memo.) On April 18, 2016, National Security Director Admiral Mike Rogers shut down all outside contractor access to raw FISA information––specifically outside contractors working for the FBI.

In spite of these problems, the government filed a September 2016 certification of compliance with Section 702 of FISA. The court noted that, in violation of FISA, government officials were monitoring U.S. persons within the United States and had gathered a large amount of domestic communications that did not pertain to the foreign intelligence target.

In other words, the government blatantly abused the system to circumvent the Constitution and used the database to surveil Americans. The court held a hearing on October 4, 2016 in which the government failed to disclose the inspector general’s review. The court later attributed this non-disclosure to “an institutional lack of candor.”

Let me rephrase what the federal judge wrote in an opinion on the government’s use of FISA surveillance data. The court wrote that it was the victim of “institutional lack of candor,” which means the court found that the intelligence community not only deceived the court, but that it did so as part of a larger institutional culture.

Admiral Rogers’ Whistleblowing

On October 26, 2016, Rogers informed the FISC that government analysts had been conducting searches of the database using “U.S.-person identifiers to query the results of upstream Internet collection.” (See FISC memo, p. 19.)  In other words, the government used the database to target and spy on Americans. The FISC rejected the 2016 certification based upon an oral admission by the government of “significant non-compliance with the NSA’s minimization procedures,” and that “The full scope of non-compliant querying practices had not been previously disclosed to the Court.”

On November 17, 2016, Rogers met with soon-to-be President Trump’s transition team. Some people believe he used the meeting to warn the president-elect that he was being improperly surveilled by the government. According to Rep. Devin Nunes, the ranking Republican on the House Intelligence Committee, the Obama administration exploited these data collection processes to spy on the Trump transition in spite of having “little or no apparent foreign intelligence value,” and although “none of this surveillance was related to Russia, or the investigation of Russian activities.” Intelligence officials then leaked its outrage to the Washington Post and immediately began pushing for the termination of Rogers for “poor performance.”

Nunes also felt the sting of whistleblower retaliation when the House Ethics committee took up a completely frivolous complaint against Nunes for leaking classified information to the White House. Think about that for a second: the president is supposed to be the ultimate authority on classified information. It should be, by definition, impossible to “leak” classified information to the president.

How dangerous is it that our intelligence community retaliates against an Article I member of Congress for revealing classified information to the duly elected Article II president of the United States?  Nevertheless, the complaint drew a temporary recusal (which are frequently used against Trump allies political advantage) of Nunes from the committee.

Spying Has Been Going On For a Long Time

Nunes’ revelations of abuse calls to mind the revelations in 2013 that “At least a dozen U.S. National Security Agency employees have been caught using secret government surveillance tools to spy on the emails or phone calls of their current or former spouses and lovers.” The NSA responded to those 2013 stories with assurances that senior officials have said they moved quickly to report and correct internal problems that led to the NSA’s accidental collection of 56,000 emails and other communications by Americans, and they insisted that willful abuse of surveillance data by officials is almost non-existent.”

After the October 2016 disclosures to the FISA court, the government made several additional attempts to bring its program into compliance. Finally, in April 2017, the court issued an opinion green-lighting the government’s use of the data under new, more-restrictive procedures. But from October 2016 through April 2017, the government’s 702 program was out of certification. The abuse of FISA left the court with no alternative to withhold this certification for those many months.

Also in April 2017, the NSA announced that it would cease certain data collection activities because it could not otherwise rule out that it would “continue to acquire communications of U.S. persons or others who are not in direct contact with a foreign intelligence target.” During the October 2016 to April 2017 period during which the program was out of certification, the court withheld its permission to make certain queries in the absence of constitutional safeguards that were not approved until April of 2017. (See FISC memo, p. 28.) But until that point, those tools would not have been available to legitimate investigators seeking to protect America from bona fide foreign adversaries.

What must it be like to be an FBI agent in Kansas City, Missouri or an assistant U.S. attorney in Wichita, Kansas to learn that a legitimate request for surveillance of a Chinese spy might not be possible because politicized officials in DC were caught abusing tools needed for real law enforcement? That’s exactly what could have happened during the window that the FISC withheld its certification of the program pending the government’s creation of measures to remedy the abuses.

As the apolitical law enforcement professionals in the field certainly understand and respect the constitutional safeguards governing surveillance, it must be frustrating to take orders from senior officials who did not. While the rice theft case noted above represents a success of bona fide application of the powerful tools available to law enforcement, it’s but one success against China’s comprehensive program to steal American technology. At the same time the Obama administration spied on the Trump campaign, it neglected any strategic counterintelligence program to stop the thefts, according to Michelle Van Cleave, a former national counterintelligence executive, in her testimony to congressional subcommittees.

Did American technology slip away in the luggage of Chinese spies because bureaucrats in Washington couldn’t resist spying on their political opponent? Americans rightly expect the powerful surveillance tools of the government be used against foreign adversaries, not meddling in American elections.  President Trump should take pains to staff those posts with officials who have the right priorities.

Adam Mill is a pseudonym. He works in Kansas City, Missouri as an attorney specializing in labor and employment and public administration law. Adam graduated from the University of Kansas and has been admitted to practice in Kansas and Missouri. Check out Adam’s new novel on Kindle, "Recrudescence." It's the story of a Kansas graduate student who discovers a hidden Greek oracle.

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