With the steady stream of controversies swirling around the White House, there has been little attention given a highly disturbing report that the Obama Administration engaged in previously undisclosed and violations of the Fourth Amendment. Just a few days from the 2016 election, the Foreign Intelligence Surveillance Court (FISA) reportedly raised a highly unusual alarm over the creation of “a very serious Fourth Amendment issue” by possibly unconstitutional surveillance conducted under President Barack Obama. If true, this should be given equal attention to the other stories crowding our front pages and cable coverage. The Obama Administration has a well-documented history of abuse of surveillance and stands as one of the most antagonistic administrations toward privacy in our history. Indeed, if true, many of the former Obama officials currently testifying against the Trump Administration were responsible for a far broader scope of abusive surveillance programs.
Recently disclosed top-secret documents from the FISA court suggest that the government admitted that the NSA was regularly violating surveillance rules. Not that these violations were occurring after the unconstitutional surveillance programs revealed by Wikileaks and Snowdon were curtailed. It also would have occurred after the disclosure that the Obama Administration put journalists under surveillance.
The FISA indicate that the government informed the court that NSA analysts had been violating rules, established in 2011, that protect the privacy of citizens on the Internet. Once again, the NSA claimed new “inadvertent compliance lapses.” The Court noted in its dealings with the NSA a certain “lack of candor” in its disclosures to the FISA court.
It is very rare for the FISA court to make such statements. (For full disclosure, I had occasion to go to the FISA court when I was an intern with the NSA and later became a critic of the court). The standards for FISA are so low and easily satisfied (with little judicial review) that it is difficult to establish any illegality under the law.
Passed in 1978 as a compromise with the Nixon Administration, FISA allows for “foreign intelligence” surveillance and was designed to evade the fourth amendment protections governing the use of warrants. FISA surveillance is permitted based on a finding of probable cause that the surveillance target is a foreign power or an agent of a foreign power. That is manifestly different from probable cause to believe someone has committed a crime. It is true that, if the target is a “U.S. person,” there must be probable cause to believe that the U.S. person’s activities may involve espionage or other similar conduct in violation of the criminal statutes of the United States. However, citizens can be collateral to the primary target under FISA. In 1994 Congress extended FISA further to allow for covert physical entries in connection with “security” investigations, and then in 1998, it was amended to permit pen/trap orders. It has been used to gather business records.
By any measure, this story deserves the attention of the national media and Congress. However, it is being buried in the crush of controversies related to the Russian investigation, embarrassing leaks, and other items. The media is correct in pursuing these legitimate stories but it should also give attention to this chilling report. There was equally limited coverage of the expansion of surveillance authority in the final days of the Obama Administration. Privacy advocates have serious concerns about these privacy stories being pushed from public review.