FISA in­tru­sion es­ti­mate halts un­der Trump ad­min­is­tra­tion

The Washington Times Weekly - - Politics - BY ALEX SWOYER

The Obama ad­min­is­tra­tion was on track to come up with an es­ti­mate of how many Amer­i­cans’ in­for­ma­tion is snared by the gov­ern­ment’s for­eign sur­veil­lance — then the Trump ad­min­is­tra­tion took over and things got bogged down.

Now that has turned into a sig­nif­i­cant hic­cup as the in­tel­li­gence com­mu­nity asks Congress to re­new those sur­veil­lance pow­ers be­fore they ex­pire at the end of the year.

Some pow­er­ful mem­bers of Congress have de­manded that the Trump ad­min­is­tra­tion restart ef­forts to come up with an es­ti­mate, say­ing Amer­i­cans de­serve to know who, ex­actly, is be­ing caught up in the U.S. drag­net on elec­tronic com­mu­ni­ca­tions.

With­out it, some of them say, it could be tough to con­tinue the sur­veil­lance pro­grams — or at least will re­quire some se­ri­ous re­stric­tions.

“Congress must reau­tho­rize the pro­gram, but know­ing the scope of in­ci­den­tal col­lec­tion will help us de­ter­mine what, if any, ad­di­tional pri­vacy pro­tec­tions are needed to en­sure we honor the Fourth Amend­ment,” said Rep. F. James Sensen­bren­ner Jr., a Wis­con­sin Repub­li­can who has been at the fore­front of th­ese is­sues since writ­ing the orig­i­nal Pa­triot Act in 2001. “If the ad­min­is­tra­tion does not dis­close the scope of the in­tru­sion, Congress should as­sume the worst and pur­sue more re­stric­tive pro­tec­tions for Amer­i­cans’ data.”

The is­sue stems from in­tel­li­gence gath­ered un­der Sec­tion 702 of the For­eign In­tel­li­gence Sur­veil­lance Act, which al­lows the gov­ern­ment to col­lect in­for­ma­tion from for­eign sources. No Amer­i­can, and no per­son in­side the U.S., is to be tar­geted.

But if a for­eign tar­get is talk­ing to an Amer­i­can, those com­mu­ni­ca­tions can be col­lected — and in some cases the Amer­i­can can be “un­masked,” mean­ing their name is at­tached to com­mu­ni­ca­tions.

That hap­pened late last year with Michael Flynn, who at the time was a top se­cu­rity ad­viser to can­di­date Don­ald Trump. His com­mu­ni­ca­tions with a Rus­sian of­fi­cial were un­masked, then some­how leaked, in a way that em­bar­rassed Mr. Trump.

A num­ber of mem­bers of Congress want to know how many more Amer­i­cans are in Mr. Flynn’s sit­u­a­tion, with their com­mu­ni­ca­tions snared in what the gov­ern­ment calls “in­ci­den­tal col­lec­tion.”

Civil rights ad­vo­cates said the Obama ad­min­is­tra­tion was close to pro­duc­ing an es­ti­mate, hav­ing worked through a num­ber of ob­jec­tions and hur­dles.

“We had got­ten past th­ese ar­gu­ments,” said El­iz­a­beth Goitein, co-di­rec­tor at the Brennan Cen­ter for Jus­tice.

But when Mr. Trump’s team took over, that progress re­versed.

New Di­rec­tor of Na­tional In­tel­li­gence Daniel Coats, a for­mer Repub­li­can sen­a­tor from In­di­ana, said he looked at the is­sue, talked it through with the Na­tional Se­cu­rity Agency and con­cluded it was im­pos­si­ble to fol­low through.

“I went out there. I talked to them. They went through the tech­ni­cal de­tails. There were ex­ten­sive ef­forts on the part of, I learned, on the parts of NSA to try to get you an ap­pro­pri­ate an­swer. We were not able to do that,” he told Congress in a June hear­ing.

He said work­ing on an es­ti­mate would siphon per­son­nel from fo­cus­ing on hos­tile for­eign coun­tries. He also said try­ing to fig­ure out a num­ber could mean un­mask­ing more Amer­i­cans, which would raise pri­vacy con­cerns.

Ti­mothy Bar­rett, a spokesman from ODNI, said an­a­lysts had been work­ing be­fore and af­ter Mr. Trump’s in­au­gu­ra­tion to come up with a plan to get a num­ber.

“In each in­stance, they were un­able to do so,” he said.

Crit­ics say the Obama ad­min­is­tra­tion seemed will­ing, and they are not sure what has changed sub­stan­tively.

Neema Singh Gu­liani, leg­isla­tive coun­sel with the Amer­i­can Civil Lib­er­ties Union, said the in­tel­li­gence agen­cies are “thumb­ing their nose” at Congress.

“It’s that [they] don’t want to pro­vide this num­ber, and the change in lead­er­ship has af­fected that,” she said.

Rep. Zoe Lof­gren, a Cal­i­for­nia Demo­crat on the House Ju­di­ciary Com­mit­tee, said Congress de­serves the an­swer.

“We have got­ten stonewalled now on a bi­par­ti­san ba­sis,” she said. “We were on the verge at the end of De­cem­ber with the old ad­min­is­tra­tion with get­ting the in­for­ma­tion, which as leg­is­la­tors we’re en­ti­tled to get.”

A Repub­li­can House Ju­di­ciary Com­mit­tee aide told The Wash­ing­ton Times that the com­mit­tee is con­tin­u­ing to work with the in­tel­li­gence agen­cies to try to come up with an­other way for law­mak­ers to get a pic­ture of the scope of the sur­veil­lance.

The is­sue seems to be a big­ger hur­dle for the House, where top mem­bers on both sides of the aisle are de­mand­ing an­swers, than the Se­nate.

The top Demo­crat on the Se­nate Ju­di­ciary Com­mit­tee, Sen. Dianne Fe­in­stein of Cal­i­for­nia, said the es­ti­mate would be good to know but isn’t nec­es­sar­ily key to the de­bate on reau­tho­riza­tion.

The House-Se­nate di­vide has played out in the past. The last time pro­vi­sions of the Pa­triot Act were due for re­newal, the House de­manded a ma­jor re­write, while sen­a­tors were more in­clined to give the in­tel­li­gence com­mu­nity a free hand.

In the end, the House largely pre­vailed by us­ing the loom­ing ex­pi­ra­tion as a bar­gain­ing chip.

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