DNI James Clapper, over the weekend, declassified and released a Fact Sheet on the just revealed PRISM project. PRISM is represented as an internal government IT program whose purpose is to gather
foreign intelligence information from electronic communication service providers under court supervision, as authorized by Section 702 of the Foreign Intelligence Surveillance Act….
under which
All such information is obtained with FISA Court approval and with the knowledge of the provider based upon a written directive from the Attorney General and the Director of National Intelligence. In short, Section 702 facilitates the targeted acquisition of foreign intelligence information concerning foreign targets located outside the United States under court oversight.
As some might expect, I have some thoughts on the program as described in the Sheet.
The Fact Sheet first addressed in general terms the collections themselves.
The “provider” (Yahoo!, Facebook, et al.) is required to provide the data, but the source of the requirement is confusing to me. FISA Court approval (I’ll elide how we know, given the secrecy of the Court and associated proceedings, that the Court approved, or under what parameters), but direction of the AG and the DNI, is my point of confusion here: is the requirement a Court order requested by the AG/DNI, or is it an order by the AG/DNI that is merely sanctioned by the Court? In the open world of police work and prosecuting attorneys, neither the police nor the prosecutor can direct a man to submit to a search that has been sanctioned by a court. The search has to be pursuant to a warrant explicitly issued by the court, albeit in response to request for one by the police/prosecutor—and supported by a showing of probable cause.
Next, must the AG and the DNI jointly request/order delivery of the information, or can either do this?
On the matter of targeting (there’s that term…) individuals:
The Government cannot target anyone under the court-approved procedures…unless there is an appropriate, and documented, foreign intelligence purpose for the acquisition (such as for the prevention of terrorism, hostile cyber activities, or nuclear proliferation) and the foreign target is reasonably believed to be outside the United States.
What level of proof must be offered the FISA Court to support an allegation of a foreign intelligence purpose? Just the bald claim? Probable cause (which must underlie that other search warrant)? Some other standard?
Next, what is the definition of “reasonably believed?”
On the matter of oversight:
[T]he notion that…activities are not subject to internal and external oversight is similarly incorrect. Collection of intelligence information…is subject to an extensive oversight regime, incorporating reviews by the Executive, Legislative, and Judicial branches.
How do we know the degree or efficacy of the oversight? It’s secret. Note, though, that the dishonesty of the present administration only emphasizes this concern. It’s government secrecy here that raises the question, not Obama “transparency.”
The Fact Sheet then moved on to the FISA Courts.
All FISA collection…is overseen and monitored by the F ISA Court, a specially established Federal court comprised of 11 Federal judges appointed by the Chief Justice of the United States.
It’s a Federal court whose judges are not vetted and approved by the Senate, as Constitutionally provided. They seem, then, not to be Article III judges. How, then can they be Federal judges?
No risks here.
On “targeting” approvals:
The FISC [FISA Court] must approve targeting and minimization procedures…prior to the acquisition of any surveillance information.
How do we know the limits are being honored? It’s a secret process.
On those minimization procedures:
Minimization procedures [require that] the dissemination of information about US persons is expressly prohibited unless it is necessary to understand foreign intelligence or assess its importance, is evidence of a crime, or indicates a threat of death or serious bodily harm.
Whose judgment of necessity? Is the FISA Court involved in this subsequent determination, or are these judgments left to the Intelligence community?
The Fact Sheet then moved to the other government branches’ involvement.
On Congress’ involvement:
The DNI and AG provide exhaustive semiannual reports assessing compliance with the targeting and minimization procedures.
How do we know the reports are truthful? The underlying data are classified. Moreover, given the blatant stonewalling of this administration concerning the provision of data and testimony concerning the IRS, Fast and Furious, the free press attacks, the Benghazi disaster, and so on, on what basis do we conclude the underlying data would be available to a classified Congressional hearing in a timely manner? Note that the stonewalling of the present administration only emphasizes this concern. It’s government secrecy here that raises the question, not Obama “transparency.”
On the Executive Branch leadership involvement:
The Executive Branch, including through its independent Inspectors General, carries out extensive oversight…which includes regular on-site reviews of how…authorities are being implemented.
We’ve seen the…effectiveness…of two of the Executive Branch’s Inspectors General: State’s vis-à-vis Benghazi and Treasury’s vis-à-vis the IRS. Moreover, on what basis do we believe that IG reports on a classified operation or series of operations will be readily available, even to a classified Congressional hearing?
The Fact Sheet concluded with a short series of claimed successes under PRISM (without providing any substantiation for the claims). Suppose, though, the claims are true. See this for some thoughts on surveillance vs freedom.
In the end, though, it comes down to trust, since some activities must be carried out at the expense of individual liberty—those search warrants, for instance—and some activities must be done in secret in order to avoid tipping off the enemy.
Trust is a terrible thing to have wasted.