By Robert Romano
An unsealed April 26 court ruling from the Foreign Intelligence Surveillance Act (FISA) Court found that the Obama administration had violated “the NSA’s minimization procedures involving queries of data acquired under Section 702 using U.S. person identifiers. The full scope of non-compliant querying practices had not been previously disclosed to the Court.”
Under FISA, the court is supposed to determine whether the minimization procedures — those that are supposed to seal the identities of U.S. persons swept up in foreign surveillance — comply with Fourth Amendment protections against unreasonable searches and seizures.
An example of those rules falls under USSID 18, which govern the collection, retention and then dissemination of foreign intelligence gathered to and from U.S. persons.
Those rules are promulgated by the Attorney General under 50 USC 1801(h)(2), which provides that they include “procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1), shall not be disseminated in a manner that identifies any United States person, without such person’s consent, unless such person’s identity is necessary to understand foreign intelligence information or assess its importance.”
Under USSID 18, to have kept the communications would have required either sign off from the Attorney General if he or she believes that the “contents indicate a threat of death or seriously bodily harm to any person,” under Section 5.4.a. Or the Director of the National Security Agency, under 5.4.d., if he determines the communications contain “significant foreign intelligence” or “evidence of a crime or threat of death or seriously bodily harm to any person.”
For these U.S. persons to have been included in a report for dissemination could have only occurred if, under Section 7.2.c., the “appropriate approval authority” determined “[t]he identity of the U.S. person is necessary to understand foreign intelligence information or assess its importance” or “[t]he information is evidence that the individual may be involved in a crime that has been, is being, or is about to be committed, provided that the dissemination is for law enforcement purposes.”
What the FISA Court is saying in its April 26 ruling was that these bare minimal rules, which do not even require a warrant to unmask a U.S. person, were not being followed. Since all the agents must show is that the information is relevant to foreign intelligence matters, that is saying something. The only explanation is that in those cases, the searches had no bearing on foreign intelligence gathering.