The following is George Croner’s response to Lawrence Husick’s critique of his four part series “The Clock Is Ticking: Why Congress Needs to Renew America’s Most Important Intelligence Collection Program.” You may read the entire series here.
I’m not sure with whom Mr. Husick is speaking on the Hill but unless they are members and/or staff of either the Intelligence or Judiciary Committees, it is highly likely that his contacts are largely ignorant of the means and manner by which electronic surveillance for foreign intelligence purposes is conducted. One of the sadder epitaphs of the Snowden episode is the number of congressmen and senators who feigned shock and dismay over Snowden’s disclosures regarding surveillance programs that had been enacted by Congress not once, but twice (in 2008 and 2012), after multiple hearings and extended debate.
Unfortunately, I do not doubt that the vast majority of legislators, other than those serving on either the Intelligence or Judiciary committees, lack even a rudimentary understanding of how FISA works – in either theory or practice. They profess to lack the time but, more likely, they simply have no inclination to access the materials that are available to assist in their understanding of intelligence collection and, if they chafe under the security restrictions associated with that access, it seems that the security of these critical collection programs is a small price to pay in a legislative environment that leaks like a sieve.
The reality is that, aside from those whose committee assignments actually bring them into contact with the Intelligence Community and its operations, legislators need to expend at least minimal effort to acquaint themselves with those operations. If they choose not to do so, this is hardly the fault of the Intelligence Community nor is it reason to weaken collection programs that have been found, by every court to have considered their operation, to conform to constitutional mandates. Jettisoning critical intelligence undertakings because Congress is too indifferent, at least in the eyes of its critics, to provide effective oversight isn’t going to make any of us safer or more secure in the exercise of our liberties.
I cannot help but note that Mr. Husick offers no solution to this legislative ineffectiveness since he seems to despair that any level of legislative oversight is capable of assuring that intelligence operations are conducted in accordance with the law. Indeed, he literally writes that under current circumstances (as related to him by unidentified congressional contacts) “meaningful oversight is impossible” and existing oversight is “powerless to limit the actions of the IC in any real manner.” If that is truly his belief, then a new set of congressionally-imposed oversight restrictions is unlikely to supply him with the level of comfort that he apparently lacks regarding the Intelligence Community’s fealty to the rule of law.
Differences of opinion are one thing, but on several points Mr. Husick is simply wrong. He posits that FISA is an entirely non-adversarial process. This is untrue. In the USA Freedom Act passed in 2015, Congress provided for the appointment of amicus curiae counsel to the FISC to present “legal argument that advances the protection of individual privacy and civil liberties.” The FISC has responded by selecting six counsel who serve by appointment to specific cases. This roster of counsel has been described as “impressive” by both the ACLU and the Electronic Frontier Foundation – no fans of FISA, in general, and Section 702, in particular. In 2015, Amy Jeffress, one of the designated amici, was appointed by the FISC specifically to address whether the minimization procedures used by NSA in its Section 702 Program satisfied the Fourth Amendment. As I noted in my article (note 30 in Part III), Ms. Jeffress concluded that “the NSA and CIA minimization procedures are sufficient to ensure that the use of U.S. person identifiers for th[e] purpose of [querying Section 702 acquired information] complies with the statutory requirements of Section 702 and with the Fourth Amendment .”)
This segues to another point made by Mr. Husick; i.e., “that, in practice, the FISC simply takes it on faith.” This is completely inaccurate, as any reader of publicly-released FISC opinions could attest. Section 702 requires that all collection “shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States,” and mandates that the FISC conclude, with respect to each certification submitted for judicial review, that the targeting and minimization procedures implemented with that certification satisfy the Fourth Amendment. Since Section 702 permits targeting only of non-U.S. persons located outside the United States, it is these targeting and minimization procedures that, in fact, are developed to protect the interests of U.S. persons and these are the precise procedures that the FISC must satisfy itself conform to Fourth Amendment requirements. Every FISC judge is a federal district judge appointed with the advice and consent of the Senate, and selected for FISC duty by the Chief Justice. I am hard-pressed to imagine any one of them “simply take[s] it on faith” in performing the duties imposed by the FISA statute.