It is hard to believe this was written a year ago; time flies. However, we are repeating a FISA-702 explanation thread below because as the year has evolved; and understanding FISA-702 process abuse is now the specific focus of Inspector General Michael Horowitz; there is an aspect to the FISA-gate story that must be expanded.
The United States intelligence community, writ large, will likely never allow the structural abuse of the FISA-702 system by the Obama administration to surface. Consider it a third rail of unspoken agreement. A similar motive for the DIA to keep the Flynn file under wraps. However, before going into the complexities of the FISA conundrum, which would also envelop any Horowitz report, it is important to revisit the basics.
We’ll break down the term: “ FISA-702(16)(17) ” into the elements that will help make sense of this story in the future.
- FISA – Foreign Intelligence Surveillance Act
- 702 – An American caught up in the process of Foreign Surveillance
- (16) – A search query based on “TO” and/or “FROM”
- (17) – A search query based on “ABOUT” (now removed)
Again, to repeat, there are differing FISA rules for use of the NSA or FBI database depending on the originating intelligence compartment.
If a search is conducted from an intelligence compartment within the U.S. government whose objective is to ensure “National Security” there are different FISA rules than a search from an intelligence compartment not engaged in “National Security”.
The DOJ has a “National Security Division”. Their compartment rules on FISA searches and reviews are different from the DOJ “Civil Rights Division”. There are 30 DOJ divisions.
The FBI (a department within the DOJ) has a Counterintelligence Division that focuses on terrorism threats etc. A FISA search from within the Counterintelligence Division has different rules than a FISA search from the Science and Technology Division.
So, We Begin: FISA searches can be conducted on any foreign person without issue. All non-U.S. citizens on the entire planet can be searched 24/7/365 no issues. FISA searches on foreign people have no restrictions at all.
However, when the FISA search returns data identifying a U.S. citizen, everything changes. Those changes are under the identifying term “702”. A “702” is an American person associated with the FISA process; and that person has 4th amendment rights.
All U.S. citizens are protected by the fourth amendment against unlawful search and seizure. All searches of U.S. people must have a valid reason. Title III says any search for a potential criminal investigation must have a judicial warrant. Additionally, any criminal search of the FISA database must also have a warrant (technically, ‘approval’).
Any FISA searches of foreign subjects, might need FISA Court approval if the returned data includes a U.S. subject (“702”).
However, When a FISA-702 search is conducted based on the need for “national security” no approval from the FISA court is needed. Search away. If the FISA search is because of a “vital national security interest” the resulting search data can be opened, and all ‘upstream’ connections explored, without seeking permission from the FISA court.
♦A “FISA-702(16)” Search Result – would be a search result of the FBI (counter terrorism) database or NSA database that returns an American person as a result of a “To” or “From” (16) type data search.
EXAMPLE: Querying phone data (phone number) TO: Operator BadGuy or FROM: Operator BadGuy – might return a list of phone numbers that also contains an American persons’ phone number. That American person is protected by the fourth amendment. To look at the “upstream” connections of the American Person to other people, likely more Americans, the search operator would need to ask permission of the FISA Court to review the upstream results.
This is the minimization process. The U.S. person must be minimally exposed, or protected, to avoid having any specific rights violated.
[NOTE: *Exception* – the search was vital to national security. If so, the upstream phone numbers could be reviewed without asking FISA permission.]
♦A “FISA-702(17)” Search Result – would be a search result of the FBI (counter terrorism) database or NSA database that returns an American person (702) as a result of an “ABOUT” (17) type data search.
EXAMPLE: Querying everything in email ABOUT: Mohammed BadGuy – might return communication of an American who wrote a letter about Mohammed BadGuy or maybe he told a friend in a text to check out a media story about Mohammed BadGuy. To look at the email or text of the American, the search operator would need to ask permission of the FISA Court to see the email/text content.
[NOTE: *Exception* – the search was vital to national security?. If So, the email and text could be looked at without asking permission]
The “about queries” are exceptionally problematic. The user can input a phone number, an ip address, a name, an email account, or virtually anything related to the identity of a person or group and receive thousands of search results to sort and filter.
November 2015 through April 2016 FISA-702(17) “About Queries”, returns from searches, were identified by NSA Director Admiral Mike Rogers, being conducted by the intelligence community (FBI), by “contractors” and “individuals” for reasons that: •were unauthorized; •were directly related to U.S. persons; •and had nothing to do with National Security; •and were conducted by people who did not request FISA Court Approval.
Pg 83. “FBI gave raw Section 702–acquired information to a private entity that was not a federal agency and whose personnel were not sufficiently supervised by a federal agency for compliance minimization procedures.”
Someone inside the FBI was giving FISA-702 search results on U.S. individuals to a private entity that had nothing to do with government. Those 702 (American Citizen) results were not “minimized” and exposed the private data of the American citizen(s).
In addition, NSA Director Mike Rogers, who is also in charge of Cyber Command, discovered people within the intelligence community were doing “searches” of the NSA and FBI database that were returning information (a non-compliant rate of 85%), that had nothing to do with “Foreign Individuals”.
Rogers requested a full FISA-702 Compliance Review.
As an outcome of that review, the DOJ/FBI compliance officer noted FISA violations. Again, the FISA Court (page 84):
We do not know how exactly many FISA-702 violations took place prior to NSA Mike Rogers initiating the full FISA-702 review in April 2016. [There were thousands during the period reviewed by the compliance audit] Nor do we know who the insider FBI individuals were; or what results were passed on; or what was done with the results.
However, given the nature of what was taking place at the time (March, April, May, 2016) it appears likely this was part of the DOJ/FBI/Fusion-GPS collision to gather information on the candidacy of Donald Trump.
CTH received a tip that Fusion GPS [either ‘individuals’ (Nellie Ohr) or the company] were one of the “contractors” mentioned, additionally the “private entity” could also be inside the Fusion GPS network (think Daniel Richman). Another “contractor” could possibly be CrowdStrike. From all appearances there were multiple people involved.
These ‘passed-along’ FISA-702 raw search results appear to be the seeds which were fertilized by Glenn Simpson, Mary Jacobs, Nellie Ohr; “unmasked” by Obama administration officials; and enhanced/laundered by Christopher Steele – to end with a “Steele Dossier” returned to the FBI via Counterintelligence Agent Peter Strzok, DOJ Deputy Bruce Ohr, and DOJ/FBI lawyer Lisa Page, for their “insurance policy”.
The DOJ and FBI then took the dossier, full circle, back to the FISA Court to gain 702 surveillance authority and approval (media says ‘warrant’), upon the Trump Campaign (October 2016), and President-Elect (after November 8th, 2016).
In October 2016, immediately after the DOJ lawyers formatted the FBI information (Steele Dossier etc.) for a valid FISC application, the head of the DOJ National Security Division, Asst. Attorney General John P Carlin, left his job. Carlin’s exit came as the DOJ-NSD and Admiral Rogers informed the FISC that frequent unauthorized FISA-702 searches had been conducted. Read Here.
All research indicates the intelligence information the DOJ and FBI collected via their FISA-702 queries, combined with the intelligence Fusion GPS created in their earlier use of contractor access to FISA-702(17) “about queries”, was the intelligence data manipulated by Nellie Ohr, and laundered by Christopher Steele for use in creating “The Russian Dossier”.