Tasked with NSA Oversight, the FBI Was a Rubber Stamp for Surveillance
A newly declassified report suggests that the FBI may have done little more than rubber stamp the NSA’s target nominations.
Attorney General Eric Holder at an awards ceremony for outgoing FBI Director Robert Mueller in 2013. Image: FBI
A newly declassified report obtained by the New York Times reveals that the Federal Bureau of Investigation began overseeing the National Security Agency's warrantless email collection program—PRISM—in 2008. However, the report suggests that the FBI may have done little more than rubber stamp the NSA's proposed surveillance targets.
The 2012 report is the result of an investigation by the Justice Department's inspector general into the FBI's role in the NSA's activities under Section 702 of the 2008 Foreign Intelligence Surveillance Act (FISA) Amendments Act, which justified the warrantless collection of electronic communications by non-US citizens.
Section 702 of the FISA Amendments Act prohibits the intentional targeting of any person "known at the time of acquisition to be located in the United States," as well as any person "reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States."
It's long been acknowledged that the NSA's stated standard of being "51 percent sure" of a potential target's foreignness is questionable at best, and that loopholes in Section 702 allowed for the agency to gather information on US citizens. What the report newly reveals is the FBI's complicity in allowing for these abuses of power through sheer negligence.
The FBI's role in administering the NSA's collection program was to ensure that Section 702's requirements were being met by the signals intelligence agency, although with the caveat that "the targeting procedures do not obligate the FBI to conduct an independent, [new] analysis of a target's US person status and location." Rather, the inspector general found, the FBI approved the NSA's requests with "considerable deference" to their judgement.
To wit, former FBI lawyer Valerie Caproni, who has faced criticism for her role in facilitating illegal government surveillance, stated in the report that a "presumption of regularity" applied to the NSA's nominations, and that the FBI's definition of due diligence did not require them to presume that the NSA was attempting to subvert the rights of US citizens. A sentence presumably outlining what due diligence constitutes in this context is redacted.
This lax approach to due diligence and apparently considerable deference to the NSA's judgement in selecting surveillance targets is further compounded by indications in the report that the data used to determine the foreign status of nominees was sometimes more than a year old.
"FBI witnesses generally agreed that foreignness information that was at least one year old raised questions about the sufficiency of the foreignness explanation," the report states, "yet the [inspector general] found no indication the 702 Team ever contacted the NSA for additional, possibly more recent information when asked to approve such nominations." The report recommends that, going forward, the FBI team assigned to approving NSA surveillance targets request more up to date information from the agency.
These disquieting revelations regarding the FBI's lackadaisical approach to overseeing government surveillance programs are just several examples of how the report raises more questions than it answers.
While the fact that the FBI and the NSA were the only agencies able to collect information under Section 702 is readily given, a sentence outlining the CIA's participation in the program is redacted. Mentions of the PRISM program itself are mostly redacted, with only one instance left readable, despite public awareness of the program and declassified reports pertaining to it.
The New York Times reports that a lawyer for the paper may challenge the redactions in a later stage of their Freedom of Information Act lawsuit.
Despite the many unknowns and heavy redactions in the report, it nonetheless makes a few things very clear: the FBI was heavily involved in overseeing and administering the NSA's PRISM program, and it took a very hands-off approach to ensuring that the rights of US citizens were respected.