Once a critic of the FBI’s use of the Foreign Intelligence Surveillance Act, the Bureau’s director, Kash Patel, has just made it more difficult to detect abuses of this powerful authority.
On Tuesday, the New York Times reported that Patel has quietly closed the Office of Internal Auditing, a unit that oversees the agency’s national security surveillance practices. This move comes after President Donald Trump removed all of the Democratic appointees from the Privacy and Civil Liberties Oversight Board in January, leaving it unable to function without a quorum. PCLOB, as it is known, is an independent review board that oversees government surveillance practices to ensure compliance with the law and with the privacy and civil liberties interests of the American people.
While the congressional intelligence committees also play an oversight role, it is difficult for them to assess the FBI’s conduct without access to internal data that the Office of Internal Auditing once provided.
In light of Patel’s statements before entering office that he would “come after” journalists and members of the so-called Deep State, the shuttering of the audit team renews civil liberties concerns. Without a unit to detect abuses, can Patel be trusted to use the Bureau’s surveillance powers responsibly?
The FISA statute was passed in 1978 to provide judicial and congressional checks on the executive branch’s powers when conducting electronic surveillance and physical searches in national security cases. While federal agents must obtain a warrant based on probable cause to conduct wiretapping in a criminal case, surveillance for the purpose of collecting foreign intelligence was not previously subject to judicial oversight–until the passage of FISA. Congressional hearings in the 1970s revealed the abuse of surveillance powers to spy on civil rights leaders and Vietnam war protesters, prompting reform. FISA created the Foreign Intelligence Surveillance Court, whose judges were appointed for rotations from federal benches across the United States. But unlike other Article III courts, the FISC operates in secret, a necessary component of foreign surveillance work to safeguard the effectiveness of our nation’s counterespionage and counterterrorism work. Because of that secrecy, various mechanisms, such as the Office of Internal Auditing, oversee compliance with the statute.
Initially, FISA permitted federal agents to obtain a wiretap order from the FISC so long as they could establish probable cause that the subject was acting as an agent of a foreign power, such as a Russian spy. But after the 9/11 attacks, the government engaged in pervasive, warrantless surveillance of suspected foreign terrorists without going to the FISC, relying on a gray area in the law to capitalize on the presence of the world’s leading internet service providers in the United States. As it turns out, even members of al-Qaeda use Gmail, enabling the U.S. government to intercept communications of foreign actors through American internet providers, bypassing the FISA process altogether. Some called the warrantless collection by the Bush Administration lawless, while others defended it as proper exercise of the president’s Article II powers.
In response, Congress amended FISA to add Section 702, which provides a second mechanism for collecting foreign intelligence. Unlike traditional, or “core” FISA, Section 702 does not require individual warrants. Instead, the attorney general and director of national intelligence obtain permission to conduct a FISA program each year, describing the methods they will use to target individuals reasonably believed to be non-US persons outside the United States. Once the FISC approves the program, intelligence agencies issue directives to service providers like Google and AT&T to grant access to electronic communications, including email, text messages, and voice calls. Analysts investigating foreign intelligence matters may then query this data to make connections and analyze threats to national security.
One concern with this practice is that even though the targets must be non-U.S. persons overseas, the communications of American citizens are sometimes incidentally swept up in conversations with a target. That is, the FBI may well collect the communications of a suspected spy in a foreign country who has an email conversation with a researcher in the United States. As a result, intelligence agents may obtain the American researcher’s communications without ever demonstrating probable cause to a judge, a result some critics call an end-run around the Fourth Amendment’s warrant requirement. While Section 702 prohibits analysts from querying the names of U.S. persons except in rare circumstances, reports indicate that FBI officials have sometimes violated those rules, including in recent cases involving Black Lives Matter protesters and participants in the January 6 attack on the U.S. Capitol. Without an Office of Internal Auditing, future abuses may go undetected.
The number of queries of U.S. persons has gone down in recent years as restrictions have become more rigorous, but, even so, last year, analysts queried the names, email addresses or phone numbers of 5,518 Americans, a sizable civil liberties concern.
In light of Trump’s flex of executive power, the need for oversight has never been more dire. Even if the Office of Internal Auditing is now a relic of history, Congress should insist that the office’s functions continue so that the House and Senate intelligence committees can effectively maintain their oversight roles to ensure that tools designed to protect Americans don’t end up being used against them.
