This column by ACRU General Counsel Ken Klukowski was published May 29, 2017 by Breitbart.
WASHINGTON, D.C. — Intelligence agencies violated the constitutional rights of American citizens through illegal surveillance during the Obama administration, recently declassified documents from the Foreign Intelligence Surveillance Court (FISC) show.
The secretive court also notes a change for the better under President Trump’s team.
The Foreign Intelligence Surveillance Act (FISA) authorizes two courts to provide judicial review for U.S. intelligence agencies when their activities require them to monitor people on U.S. soil. One is FISC, and the other is the court that hears appeals from FISC decisions, the U.S. Foreign Intelligence Surveillance Court of Review (FISCR). The benches of FISC are comprised of federal judges from regular federal trial courts throughout the nation, and three appellate judges from around the nation comprise the bench of FISCR.
The Office of the Director of National Intelligence (ODNI) recently declassified an April 26, 2017, ruling from FISC, detailing violations of Fourth Amendment rights during the final year of the Obama administration.
The problems dealt specifically with Section 702 of FISA. This provision of federal law, found at 50 U.S.C. § 1881a, contains “minimization” procedures for U.S. citizens whose information is scooped up by the intelligence community while those agencies are conducting FISA surveillance. These safeguards minimize the burden on civil rights caused by the intrusion of the federal government into citizens’ lives.
The Fourth Amendment commands:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Writing the 99-page opinion for FISC, Judge Rosemary Collyer castigated the Obama administration for failing to follow the Section 702 procedures designed to ensure that the government does not violate Americans’ civil rights as it is performing work that is vitally important to national security. Collyer declared that the previous administration’s cavalier violations of Section 702’s requirements created “a very serious Fourth Amendment issue.”
Collyer sharply criticized the National Security Agency’s inspector general and the NSA’s Office of Compliance for Operations for their “institutional ‘lack of candor,’” signaling that in addition to ignoring legal constraints, the Obama administration was not being honest with the court about its violations of federal law.
Under President Trump, the NSA decided on March 30 that it would stop certain collection activities that FISC was then reviewing. Collyer noted this change for the better in her opinion, and adding that the court granted “approval of the amended certifications and accompanying targeting and minimization procedures.”
The court also criticized the FBI, faulting the domestic agency with distributing “raw FISA information” to a wide array of individuals associated with the bureau, including private contractors who did not need access to the information. Collyer noted that this unwarranted practice had also ceased under the Trump administration, with the FBI curtailing its dissemination of raw intelligence on April 18.
Parts of the opinion were redacted to safeguard other relevant facts.