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The following is a response to the four part series “The Clock Is Ticking: Why Congress Needs to Renew America’s Most Important Intelligence Collection Program” by George Croner. You may read the entire piece here.
George W. Croner argues in a recent series of articles published by FPRI that Congress should renew Section 702 of the Foreign Intelligence Surveillance Act of 1978 (“FISA §702” or “702”) because it is “America’s most important intelligence collection program” accounting for more than 250 million collected Internet communications in 2011. Mr. Croner, a former principle litigation counsel for the National Security Agency, relates that information about the use of 702 is classified, but that the volume of collection and the value of that information is unlikely to have diminished in recent years. Without available public information, it is impossible to dispute such assertions, and they must be taken at face value. Mr. Croner concludes that in his view, Congress should renew 702 without changes to either the statute or how it is interpreted and implemented by the Intelligence Community (“IC”). Neither of these conclusions, however, is justified by the scant record available in the unclassified literature, and when there are potential and actual abuses of Constitutional rights of Americans (either of citizens or of noncitizens accorded protections under law), Congress should err on the side of civil liberties, and should enact appropriate safeguards when it renews FISA §702.
None of what follows should be taken as a blanket indictment of those who work for the IC, or for our Department of Defense or in law enforcement. In every case with which this writer is familiar, such agencies and the men and women who work for them are responsible stewards of our nation’s security and of individual rights. Each certainly believes that he or she is acting with the utmost integrity and within the law. It is important to recall, however, that successive administrations, and the American people have placed demands on our public servants that are extraordinary. We ask that they keep all of us safe from harm, in all places, and at all times. In the view of many in the IC, that demand requires that we cede to those who accept the task the discretion to use any tool that advances their ability to perform it, within the bounds of the law. It is the contours of those bounds that are addressed here.
Lack of Meaningful Oversight
As part of FPRI’s Center for the Study of Terrorism, this writer has, on many occasions, asked members of the House of Representatives, the Senate, and their staffs for their views on how oversight of various electronic intelligence collection activities are conducted and whether this oversight is effective in governing the manner, method and scope of such collection activities. On numerous conversations, both elected officials and their staff members have explained that they are given extremely limited access to documentary materials, without the benefit of full explanatory materials (even of the type published by the news media following the disclosures made by Edward Snowden) and must review voluminous disclosures in difficult physical confines, making no notes, and without external assistance from outside experts. All have expressed their feelings that in such circumstances, meaningful oversight by Congress is impossible, and that they end up accepting the assertions of the relevant agencies because Congress has no way to effectively dispute them. While Congressional oversight exists, it appears powerless to limit the actions of the IC in any real manner.
Lack of Adversarial Process
Unique in all of American jurisprudence, Congress has established the Foreign Intelligence Surveillance Court (FISC) as a non-adversarial body. As Mr. Croner states, FISA §702 requires that the Attorney General (AG) and the Director of National Intelligence (DNI) certify that there are procedures (submitted to the FISC) and guidelines (not submitted to the FISC) and that this process allows a 30 day review period by the FISC (during which surveillance may occur). This period may be extended multiple times. The FISC conducts no probable cause inquiry, and indeed, cannot, as the certification does not contain any identification of the target of surveillance, or of the specific facilities, places, premises or property where acquisition of communications will be conducted. As long as the certification contains the required checklist of statutory elements, and comports with the Fourth Amendment, the FISC issues an order approving the certification. Importantly, there is no advocate present to challenge any of the submission by the AG and the DNI, and the FISC lacks the staff required to conduct any meaningful independent verification or inquiry regarding the submissions. This means that in practice, the FISC simply takes it all on faith.
Shrouded in Jargon
Like any professional community, the IC has, over time, developed its own language in which to discuss its activities and methods. Thus, as described by Mr. Croner, to the IC, people are “targets”, communications channels (e.g., email addresses, telephone numbers, cellular IMEIs, and the like) are “selectors” and such selectors are “tasked” (i.e., used to collect information being communicated.) Under 702, only non-US persons believed to be located outside the United States may be targets. The collection is conducted using at least two methods: PRISM, which collects using Internet service provider facilities, and “Upstream” which taps the Internet and telephone network backbones directly. On occasion, this specialized lexicon has been employed to deflect questions and oversight. The lack of clear and consistent communication between the IC and Congress should give all cause for concern as we seek extend 702 and the programs that it enables.
Concerns for Drafting
Several concerns have been raised by a variety of organizations and civil rights advocates. Among these are:
“Backdoor searches” of collected information that just happens to be about US persons or those in the United States.
“Shared information” that may be used by law enforcement or other agencies that have no connection with foreign intelligence.
“Parallel construction” where information collected under 702 is then used for prosecutions that have no national security implications, but because of the sources and methods employed in collection, the information is shielded from the defense under a national security rationale.
“Ineffective oversight and enforcement” in the bill now before Congress means that the IC, although ordered to increase transparency, still will be able to simply assert that its use of 702 passes muster, and neither the FISC nor Congress will have any effective means to challenge such assertions.
Mr. Croner addresses each of these concerns, discusses the relevant case law, and in each, concludes that the benefit of the doubt should be given to the IC. As the facts upon which citizens could challenge the propriety of use of collected information are classified and thus unavailable to use in public hearings regarding the pending legislation, one must hope (against the available evidence) that members of Congress will, for the first time, exercise meaningful review and impose constraints, if they are determined to be necessary.
Finally, Mr. Croner asks, “Should compliance issues sink Section 702?” Here, we agree that there have been violations of “arcane procedures” by the IC that have been self-reported by the agencies involved. We do not know what violations have gone unreported, but where Mr. Croner sees these violations are regrettable procedural glitches, others justly see them as violations of the Constitutional rights of US persons, and seek to prevent such violations in the future by crafting careful safeguards into any renewal of FISA §702.
Surely, we as a nation of laws, and Congress, as our elected representatives, have the time to engage in a discussion of how meaningful protections of important rights may properly be balanced with our need for security and our determination to provide the IC with the tools to do the job we have asked it to do. No one is suggesting that we should, in Mr. Croner’s words, “throw the baby out with the bathwater” by failing to renew FISA §702. Neither, however, should we simply, as he suggests, “renew Section 702 without any material change in the statutory scheme…”
Balancing of fundamental rights with the need for security is a central theme of our democracy. We should trust our IC in its operations, but institute meaningful means of verification of the assertions that it makes, and the uses to which it puts collected communications. Anything less is unacceptable, and our elected officials, and our intelligence, defense, and law enforcement agencies should accept no less. Section 702, with reforms to address civil liberties and procedural objections, can serve our nation better than either a blind renewal or allowing its complete lapse.
 Among these are: Fight for the Future, Human Rights Watch, Bill of Rights Defense Committee, Defending Dissent Foundation, RootsAction, AccessNow, Demand Progress, American Civil Liberties Union, Restore the Fourth, CALYX, Government Accountability Project, Lab, Arab American Institute, Freedom of the Press Foundation, Campaign for Liberty, Niskanen Center, and Electronic Frontier Foundation