DOJ Inspector General Finds FBI Is Playing By Its Own FISA Rules
The FBI has always played it fast and loose with FISA (Foreign Intelligence Surveillance Act) requirements. It tries to get away with it by shifting its self-perception as needed. When asked why it's bypassing limitations on backdoor searches, it will plead ignorance, gesturing with its massive hairy hands thoughtfully and saying it's nothing more than a lowly law enforcement agency that can't possibly fully understand the complexity of national security laws.
When asked why it's accessing FISA-derived surveillance haystacks in the first place, the FBI puffs up its chest and insists it's a national security agency - an indispensable addition to the War on Terror.
Playing both sides while pleading convenient ignorance has given the FBI plenty of unlawful access to NSA surveillance databases. It has also allowed it to ignore the constitutional norms that govern plain vanilla law enforcement work, since it often presents itself as a national security agency.
So, it's no surprise the DOJ is surprised that the FBI isn't following the DOJ's own guidance on FISA-related issues. Charlie Savage - a longtime national security reporter for the New York Times - highlighted some of these findings in a recent Twitter thread.
That brings us to the DOJ Inspector General report [PDF], which shows how the FBI's own general counsel hands down advice that conflicts with well-established DOJ legal guidance on the use of FISA intelligence.
The DOJ is also part of the War on Terror. It oversees multiple agencies and retains its own Terror War-specific entity, the National Security Division (NSD). The NSD has its own legal team focused on sussing out the legalities of surveillance efforts and access by DOJ agencies. The FBI also has its own legal team, the Office of General Counsel (OGC), as well as a more national security related subdivision of lawyers: the National Security and Cyberlaw Branch (NCSLB).
As it turns out the DOJ's National Security Division rarely sees eye-to-eye with the FBI's own NatSec lawyers, the NCSLB. And that has led to a bunch of what appears to be extremely convenient interpretations of applicable law and guidelines by the FBI.
The Inspector General report notes the lack of cohesion resulting from these two sets of national security legal teams. It notes this in extremely diplomatic language that seems to downplay the amount of friction between these two departments.
In general, the NSD and NSCLB attorneys we spoke with described having a professional and cordial working relationship. Nevertheless, we found that disagreements existed within both entities related to the proper role of, and input from, NSCLB attorneys in certain legal determinations typically reserved for prosecutors. We also found examples of ineffective communication on important internal processes, such as the review of draft court documents for sensitive information prior to their filing.
The Inspector General logically (and obviously) concludes changes need to be made to present a united front in NatSec proceedings. It suggests more guidance" be issued by the DOJ, which seems unlikely to solve problems that appear to date back to at least the 2008 revisions to the Foreign Intelligence Surveillance Act.
As a result of this disconnection, the DOJ's National Security Division has assumed certain protocols have been followed when they have not - a problem compounded by the FBI's misguided (and perhaps self-serving) assumptions about what sort of potential abuses need to be reported to the FISA court and DOJ oversight.
During our audit, we found NSCLB and NSD have held differing legal interpretations of two important principles applied to the FBI's national security activities. These differences have caused confusion and frustration for both organizations. Specifically, NSCLB and NSD held differing views on the materiality standard for the FBI's submissions to the FISC and the FISA Section 702 query standard, both of which are vital to ensure that the Department and the FBI comply with authorities or approvals granted by the FISC.
Because the FBI's NatSec lawyers view materiality" differently than the DOJ's, the FISA court has not been informed of potential FISA violations by the FBI.
The 2009 Accuracy Memorandum defined material facts as, those facts that are relevant to the outcome of the probable cause determination." The FBI had interpreted this standard as facts that are outcome determinative, or facts that would invalidate the legal determination. However, NSD had applied a broader standard than the FBI, with NSD's interpretation of material facts being facts that are capable of influencing the requested legal determination.
The FBI claimed its misinterpretation of a standard that has been in place since 2009 was due to it being (conveniently, in terms of this argument) a law enforcement agency and applying regular search warrant standards to material facts," which are almost always outcome determinative."
But this excuse should mean nothing. First, the FBI's depiction of itself shifts as needed, since it's always harder to hit a moving target. But, perhaps more importantly, the FBI - no matter how it views itself for the sake of its bad arguments - can't pretend it never had an opportunity to clarify these standards. As the IG report notes, the DOJ's guidance is nearly old enough to obtain a driver's license in several states.
Senior NSD officials stated NSD had applied the same standard for at least 15 years and NSCLB had known of NSD's application of the standard because it was reflected in previous Rule 13 notices filed with the FISC.
This standard has been cited repeatedly in FISA court filings, including filings made by the FBI's own national security lawyers. To pretend it's unclear 15 years and hundreds of filings down the road is disingenuous.
On top of that, the FBI is continuing to misconstrue guidance to engage in backdoor searches of Section 702-derived data - an abuse the FBI has engaged in for years.
We found that NSCLB and NSD held differing interpretations on the query standard as found in the FBI's Section 702 Querying Procedures. In 2015, DOJ told the FISC that the FBI's standard for querying was reasonably likely to return foreign intelligence information or evidence of a crime." However, the language in the FBI's querying rules at that time was to the extent reasonably feasible, authorized users...must design such queries to find and extract foreign intelligence information or evidence of a crime."
The FBI claims this - the search of 702 data to, in essence, perform background checks on potential informants (many of which may be lawful US residents or citizens) - is the DOJ's fault. It claims the DOJ's legal team shifted its interpretation" of the legal standards, resulting in a bunch of inadvertent abuses by the FBI.
Au contraire, says the DOJ's NatsSc division. Once again, the guidance is still the same and has been the same for nearly 15 years.
In contrast, NSD told us that the query standard has been the same since 2008. A senior NSD official stated that the FBI had a fundamental misunderstanding of the standard and that compliance incidents were not identified sooner because NSD can only review a limited sample of the FBI's queries and NSD improved upon its ability to identify non-compliant queries over time.
This is a fact the FBI appeared to acknowledge when it updated its Section 702 access procedures in 2018. That update appeared to agree with long-held NSD guidance, something the FBI now claims it was unaware had underwent a definitional shift at some undefined point in the past.
The FBI's own narrative disagrees with the assertions made to the Inspector General's Office. The FBI wants to have it both ways. And it has set up a series of scapegoats, starting with the undefined shift" it claims the DOJ implemented and finishing with FBI agents who were just trying to be good little feds.
[A]ccording to the FBI, it was concerned that as a result of the change to the query standard it could no longer perform vetting queries on raw FISA information before developing a confidential human source (CHS). FBI officials told us that it was important for agents to be able to query all of its databases, including FISA data, to determine whether the FBI has any derogatory or nefarious information about a potential CHS.
However, because of the implementation of the 2018 standard, the FBI is no longer able to conduct these queries because they would violate the standard (unless the FBI has a basis to believe the subject has criminal intent or is a threat to national security). According to the FBI, because its goal is to uncover any derogatory information about a potential CHS prior to establishing a relationship, many agents continue to believe that it is irresponsible to engage in a CHS relationship without conducting a complete query of the FBI's records as smoking gun" information on a potential CHS could exist only in FISA systems.
This might seem logical or understandable... except that the FBI openly admits these arguments have been affirmatively shut down by the DOJ's NatSec legal team.
Nevertheless, these FBI officials told us that they recognize that they have been unsuccessful when
presenting these arguments to NSD and the FISC and, as noted below, they follow NSD's latest revision of
query standard guidance.
The only thing that appears to be shifting frequently is the FBI's excuses and legal determinations. The DOJ, on the other hand, has been pushing the same legal standard for years, one conveniently ignored by the FBI. The IG may be hopeful this can be worked out, putting the DOJ and all of its components on the same FISA page. But the FBI has, for the same number of years, granted itself a shifting, omnipresent asterisk, mixing and matching its NatSec/law enforcement directives as needed to give itself the leeway it needs to do what it wants. A single report asking for nothing more than a little more cohesion isn't going to change that.