The NSA Didn't Actually Address All of FISC's Section 702 Concerns

4724093713_fb65eca648_z.jpgThe Director of National Intelligence, James Clapper, would very much like you to view the previously classified documents his office released last month as proof that the National Security Agency’s secret surveillance activities have not only been subjected to vigorous oversight, they have taken it seriously. 

I mean, the Office of the Director of National Intelligence (ODNI) didn’t just declassify the long sought Foreign Intelligence Surveillance Court (FISC) opinion that indicated the NSA’s foreign intelligence collection activities haven’t been as problem free as the administration’s suggested.

No, the ODNI – not exactly known for its fondness for declassification - also declassified the government’s response to the FISC opinion, and the FISC opinion on the government’s response to the original FISC opinion, and the minimization procedures the NSA uses “in connection with acquisitions of foreign intelligence information pursuant to Section 702” and the “Semi-Annual Assessment of Compliance with the Procedures and Guidelines issued pursuant to Section 702” plus all of the previously classified testimony the Administration gave to Congress discussing 702, including a memo that the administration had previously made available to members of Congress in which they described FISC’s having raised concerns about the Administration’s collection activities as an example of “how well the existing oversight regime works.”   (An ironic choice of words given that they were being used to describe a legal opinion in which a federal judge used a footnote to smack the Administration for substantially misrepresenting the “scope of a major collection program”)

And, if all of that information wasn’t enough to convince you that FISC’s concerns about the Administration’s compliance with Section 702 of the FAA were nothing when compared to the extraordinary efforts the government employs to ensure that these programs are conducted with respect to the rule of law, the Director of National Intelligence himself wrote a three page cover letter to accompany the release of these documents. The letter acknowledged that the court had determined that:

For highly technical reasons…the minimization procedures proposed by the government as applied to a discrete subset of NSA’s upstream collection of electronic communications did not satisfy certain statutory requirements in FISA and that the targeting and minimization procedures as applied to the same subset of communications did not satisfy Fourth Amendment requirements. 

But – if you followed that -- fear not!  Because, “In the end,” the DNI wrote:

the Government satisfied the concerns raised by the Court and the Court found that the revised procedures satisfied the law and the Constitution. These documents reflect the Government’s serious commitment to getting it right and the Court’s careful and searching review of matters within its jurisdiction.

For the record, I don’t blame the DNI for being defensive. While his actions have left plenty of room for criticism, James Clapper is not a bad guy.  He’s not slaughtering puppies or making millions gambling with people’s home mortgages.  In fact, in any other context, I’m pretty sure we’d be calling him a hero.  Not only is he a decorated veteran, who spent thirty-two years in uniform, including two combat tours in Southeast Asia, at 73-years-old, he continues to work seven days a week for a government salary in an effort to keep Americans safe. 

That’s not to say I agree with his approach to keeping Americans safe.  I don’t.  But I don’t doubt that his heart is in the right place and I can only imagine how much it must suck to have the public he’s dedicated his life to protect turn on him with such anger.

Problem is, though, he’s wrong.

The plethora of documents General Clapper declassified are not proof that Intelligence Community oversight is working, because despite what General Clapper says, the government did not satisfy all of the concerns that the Court raised about the Administration’s Section 702 collections activities. 

For those following along at home, Section 702 of the FISA Amendments Act gives the Administration the authority to collect an