United States Foreign Intelligence Surveillance Court (FISC AKA FISA Court)
Established and authorized under the Foreign Intelligence Surveillance Act of 1978 (FISA) to oversee requests for surveillance warrants against foreign spies inside the United States by federal law enforcement and intelligence agencies.
Such requests are made most often by the National Security Agency (NSA) and the Federal Bureau of Investigation (FBI).
FISA’s powers have evolved to the point that it has been called “almost a parallel Supreme Court… Unlike the Supreme Court, the FISA court hears from only one side in the case — the government — and its findings are almost never made public.” | NEW YORK TIMES
The USA PATRIOT Act was signed into law by President George W. Bush on October 26, 2001. | PRESIDENTAL ARCHIVES
Ten-letter abbreviation (USA PATRIOT) expanded, the full title is “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001” | US GOVERNMENT
Mixed Signals In The Debate Over Encryption Technology | CNN | JUN 16, 1998
“While most agree that encryption is a key element in the growth of electronic commerce, a long-running debate has raged involving the high-tech industry, government officials and lawmakers over how far the government should go in restricting the technology’s use. High-tech companies have been pushing to export much stronger encryption products than currently allowed.”
“The Clinton administration has been reluctant to relax export controls on encryption. It is worried that easing controls may hinder lawenforcement and intelligence gathering when the technology is used to block access to communications or data.”
“June 9, 1998, top law enforcement officials met with a half-dozen executives of high-tech companies to discuss both sides of the issue.”
“Among the participants in the meeting, hosted by Sen. Dianne Feinstein, D-Calif., at her office, were FBI Director Louis J. Freeh and Attorney General Janet Reno, as well as Microsoft Corp. Chairman Bill Gates, Scott McNealy, chief executive of Sun Microsystems Inc., and Sen. Jon Kyl, R-Ariz.”
In 1999, Stephen Manes quoted Soctt McNealy, “You have zero privacy anyway. Get over it.” | WIRED 1999
National Defense Authorization Act (NDAA)
United States federal law specifying the budget and expenditures of the United States Department of Defense.
Each year’s act also includes other provisions.
The authorization bill determines the agencies responsible for defense, establishes funding levels, and sets the policies under which money will be spent.
United States Department of Homeland Security (DHS)
Agency of the United States federal government given authority over public security. Its stated missions involve antiterrorism, border security, immigration and customs, cybersecurity, and disaster prevention and management.
It was created in response to the September 11 attacks, officially formed on NOV 25, 2002.
DHS absorbed the Immigration and Naturalization Service and assumed its duties.
Additionally, the border enforcement functions of the INS, including the U.S. Border Patrol, the U.S. Customs Service, and the Animal and Plant Health Inspection Service were consolidated into a new agency under DHS: U.S. Customs and Border Protection.
Frances Townsend | WHITEHOUSE | RELATIONSHIP SCIENCE
Decision Sciences | Board of Advisors
The Aspen Institute | Member
The Trilateral Commission | Member
The Council on Foreign Relations | Member
Department of Justice, District of Brooklyn | Counsel to the Attorney General for Intelligence Policy (1985 – 1988) | Mentored by Rudolph Giuliani and FBI Director Louis Freeh.
Department of Justice, Southern District of New York | US Attorney International Organized Crime and White Collar Crime (1988 – 1991)
Department of Justice, Office of the Attorney General
International Programs | (1991 1993) to assist in establishing the newly created Office of International Programs, the predecessor to the Executive Office for National Security.
Chief of Staff to the Assistance Attorney General, Criminal Division | (1993 1995) played a critical role in establishing the Division’s international training and rule of law programs.
Director of International Affairs, Criminal Division | (1995 – 1997) | which serves as the U. S. Central Authority for extradition and mutual legal assistance, and works with the Department of State in the negotiation of international law enforcement treaties.
Acting Deputy Assistant Attorney General, Criminal Division | (1997 1998) where she oversaw international law enforcement and training matters, and acted as an advisor to the Attorney General and Deputy Attorney General on international law enforcement policy.
Advisor to the Attorney General & Deputy Attorney General for International Law Enforcement Policy | (1997 1998)
Counsel to AG, Office of Intelligence Policy and Review for National Security Policy & Operations | (1998 – 2000) managing matters related to national security policy and operations for the Department of Justice. In this capacity she headed the office of Intelligence Policy and Review, an office that:
provides legal advice and recommendations to the Attorney General and the Department of Justice regarding national security matters, reviews executive orders, directives and procedures relating to the intelligence community, and approves certain intelligence-gathering activities, especially those matters related to the Foreign Intelligence Surveillance Act.
Executive Office of the President
Deputy Assistant to the President & Deputy National Security Advisor For Combating Terrorism | (2003 – 2004)
Assistant to President George W. Bush for Homeland Security and Counterterrorism | (2004 – 2008)
US Coast Guard | Assistant Commandant for Intelligence (2000 2003)
Homeland Security Council | Chairman | (2004 – 2008)
Intelligence and National Security Alliance (INSA) | Chairman of Board of Directors
Protiviti Inc. | Advisory Board | (2015 – present)
IrisGuard Incorporated | Advisory Board
MacAndrews & Forbes Holdings, Inc. | Executive Vice President of Worldwide Government, Legal and Business Affairs
Aquamarine Investment Partners | Senior Counselor
SAP National Security Services, Inc. | Chair
Monument Capital Group, LLC | Operating Advisor
Freeport-McMoRan Inc. | Independent Director
The Western Union Company | Independent Director
SIGA Technologies | Director | (2011 – 2014)
Business Executives for National Security, Inc. | Director
Bipartisan Policy Center | Director
Baker Botts L.L.P. | Corporate Partner
CNN | National Security Expert Analyst
Secret Court’s Judges Were Warned About NSA Spy Data | WASHINGTON POST page 1 | WASHINGTON POST page 2 | FEB 9, 2006
FISA court is the secret panel created in 1978 in response to a public outcry over warrantless domestic spying by J. Edgar Hoover’s FBI
The FISA court secretly grants warrants for wiretaps, telephone record traces and physical searches to the Justice Department.
Both judges had insisted that no information obtained this way be used to gain warrants from their court, according to government sources, and both had been assured by administration officials it would never happen.
Both presiding judges agreed not to disclose the secret program to the 10 other FISA judges, who routinely handled some of the government’s most highly classified secrets.
The two heads of the Foreign Intelligence Surveillance Court were the only judges in the country briefed by the administration on Bush’s program. The president’s secret order allows the National Security Agency to monitor telephone calls and e-mails between people in the United States and contacts overseas.
Twice in the past four years (2002-2006), a top Justice Department lawyer warned the presiding judge of a secret surveillance court that information overheard in President Bush’s eavesdropping program may have been improperly used to obtain wiretap warrants in the court, according to two sources with knowledge of those events.
Between 1979 and 2004, it approved 18,748 warrants and rejected five.
So early in 2002, they decided that any case in which the government listened to someone’s calls without a warrant, and later developed information to seek a FISA warrant for that same suspect, was to be carefully “tagged” as having involved some NSA information.
Shortly after the warrantless eavesdropping program began, then-NSA Director Michael V. Hayden and Ashcroft made clear in private meetings that the president wanted to detect possible terrorist activity before another attack. They also made clear that, in such a broad hunt for suspicious patterns and activities, the government could never meet the FISA court’s probable-cause requirement, government officials said.
SECRET COURT SAYS FBI MISLED JUDGES IN 75 CASES | NEW YORK TIMES | AUG 23, 2002
The nation’s secret intelligence court has identified more than 75 cases in which it says it was misled by the Federal Bureau of Investigation in documents in which the bureau attempted to justify its need for wiretaps and other electronic surveillance, according to the first of the court’s rulings to be released publicly.
In its opinion, the court rejected a secret request made by the Justice Department this year to allow broader cooperation and evidence-sharing between counterintelligence investigators and criminal prosecutors.
FBI. and the Justice Department tried to defy the will of Congress by allowing intelligence material to be shared freely with criminal investigators.
The standards of evidence required for electronic surveillance are much lower in many intelligence investigations than in criminal investigations, the authors of the law wanted to prevent the dissemination of intelligence information to criminal investigators or prosecutors.
In a number of cases the FBI and the Justice Department had made ”erroneous statements” in eavesdropping applications about ”the separation of the overlapping intelligence and criminal investigators and the unauthorized sharing of FISA information with FBI criminal investigators and assistant U.S. attorneys.”
The court said that the FBI and the Justice Department were violating the law by allowing information gathered from intelligence eavesdrops to be used freely in bringing criminal charges, without court review, and that criminal investigators were improperly directing the use of counterintelligence wiretaps.
In one case, it said, the error appeared in a statement issued by the office of Louis J. Freeh, then the FBI director, in which the bureau said that target of an intelligence eavesdropping request ”was not under criminal investigation.”
In March of 2001, the court said, ”the government reported similar misstatements in another series of FISA applications in which there was supposed to be a ‘wall’ between separate intelligence and criminal squads in FBI field offices to screen FISA intercepts, when in fact all of the FBI agents were on the same squad and all of the screening was done by the one supervisor overseeing both investigations.”
Pasquale J. D’Amuro serves as the Chairman and Chief Executive Officer of Global Risk & Investigative Diligence, LLC (GRID) a full-service security, crisis management and investigative consulting firm. Mr. D’Amuro also serves as the Chairman and Chief Executive Officer of Giuliani Security and Safety, which he joined in April of 2005.
Mr. D’Amuro’s efforts in the private sector follow 26 years of distinguished service with the Federal Bureau of Investigation. Ultimately rising to the Bureau’s 3rd highest position, Mr. D’Amuro served in a variety of capacities throughout his career, including Associate Special Agent in Charge of the New York Office’s Criminal Division; Inspector in Charge of the September 11th investigation; Assistant Director of the Counterterrorism Division; Executive Assistant Director for both Counterintelligence and Counterterrorism; and the Assistant Director in Charge of the New York Field Office. In each position of increasing difficulty, Mr. D’Amuro excelled in achieving the FBI’s most urgent mission-critical objectives.
Beginning his career as a field agent in New York, Mr. D’Amuro went on to serve in various offices in New York and Washington and participated in investigations that stretched into regions and locales across the globe, including the European and African continents, as well as Iraq, Afghanistan, Saudi Arabia, Jordan, Israel, Yemen, and Pakistan.
In October of 2001, Mr. D’Amuro received what was to become one of his most challenging and gratifying assignments, when he was chosen by FBI Director Robert Mueller to lead the Bureau’s investigation into the terrorist attacks of September 11, 2001. Reporting directly to the Director and the Attorney General for the United States, Mr. D’Amuro led the efforts of literally thousands of agents, coordinating one of the FBI’s largest and most comprehensive investigations, which resulted in the positive identification of all 19 hijackers and the successful prosecution of numerous individuals linked to Al-Qaeda and other terrorist organizations. Based upon the success of his efforts, Mr. D’Amuro’s responsibilities were broadened, and he was appointed to oversee field investigations into all of the nation’s threat-related activity. Despite the complexity of organizing and managing the analysis of thousands of leads, Mr. D’Amuro was praised by the Director for demonstrating “the highest level of initiative, flexibility, and innovation to accomplish the Bureau’s mission,” and in January 2002 was promoted to Assistant Director of the FBI’s national Counterterrorism Division.
Under Mr. D’Amuro’s leadership, the Counterterrorism Division more than quadrupled in budget and size, expanding both its reach and methods of operation. Included among the many enhancements Mr. D’Amuro brought to the Division was the creation of the Terrorism Financial Operations Section (TFOS), the first FBI section dedicated exclusively to targeting the financiers and the money supporting terrorist activities, as well as the Communications Exploitation Section, which greatly expanded the Bureau’s capabilities to retrieve and analyze essential telecommunications and electronic data. Mr. D’Amuro also played a critical role in advocating the needs and concerns of the Bureau to Congress, testifying on numerous occasions with respect to the events of September 11th, the changes in the Counterterrorism Program of the FBI, and the various Oversight Committees conducting reviews of FBI operations.
In November 2002, Mr. D’Amuro was appointed by the Director of the FBI to serve as Executive Assistant Director for Counterintelligence and Counterterrorism. In this role, Mr. D’Amuro helped forge significant inroads toward improving information sharing among the various federal law enforcement and intelligence agencies. Included among his accomplishments was the establishment of the Memorandum of Understanding that created the Terrorism Threat Integration Center and formalized the information sharing protocols between the FBI, Central Intelligence Agency, Department of Homeland Security, and Department of Defense. Mr. D’Amuro also played a lead role in establishing the centralized Terrorism Watch List, which linked all previous registers into a single comprehensive database operated and managed by the FBI. Mr. D’Amuro’s strong relationships with his government counterparts, results-driven work ethic, and ability to liaise effectively with the White House and the National Security Council, were lauded as critical factors in the success of the endeavors.
In August of 2003, Mr. D’Amuro was tapped by the FBI Director to take charge of the Bureau’s New York Office, its largest and highest profile command. As Assistant Director in Charge, Mr. D’Amuro established New York as the first FBI office to operate its own Office of Intelligence. This groundbreaking achievement ensured the proper analysis of information developed by the New York Office as well as information sharing within the law enforcement/intelligence community and the private sector. Throughout his tenure in New York, Mr. D’Amuro lectured regularly and appeared publicly to provide transparency for the changes implemented within the Bureau post-9/11.
Over the course of his law enforcement career, Mr. D’Amuro has been the recipient of numerous awards and commendations, including the FBI’s Presidential Rank Award of Distinguished Executive in the Senior Executive Service. In 2004, Mercy College, Dobbs Ferry, New York, recognized Mr. D’Amuro’s achievements in the areas of law enforcement and counterterrorism by awarding him an honorary Doctorate of Laws.
Mr. D’Amuro previously served on the Board of Trustees of Mercy College and has appeared as a senior analyst on CNN.
Bush Lets U.S. Spy on Callers Without Courts | NEW YORK TIMES | DEC 16, 2005
Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.
The previously undisclosed decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad.
Nearly a dozen current and former officials, who were granted anonymity because of the classified nature of the program, discussed it with reporters for The New York Times because of their concerns about the operation’s legality and oversight.
Administration officials are confident that existing safeguards are sufficient to protect the privacy and civil liberties of Americans.
The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny.
President Bush significantly eased limits on American intelligence and law enforcement agencies and the military.
The NSA breaks codes and maintains listening posts around the world to eavesdrop on foreign governments, diplomats and trade negotiators as well as drug lords and terrorists.
Traditionally, the FBI, not the NSA, seeks such warrants and conducts most domestic eavesdropping. Until the new program began, the N.S.A. typically limited its domestic surveillance to foreign embassies and missions in Washington, New York and other cities, and obtained court orders to do so.
Since 2002, the agency has been conducting some warrantless eavesdropping on people in the United States.
An Outsider’s Quick Rise To Bush Terror Adviser – Frances Townsend | WASHINGTON POST | AUG 27, 2005
In September of 2001, she worked for the Coast Guard as the intelligence chief. At the time, the Coast Guard was not part of the “intelligence community” and thus was not allowed to share sensitive information.
She helped the Coast Guard get added to intelligence legislation and transformed the agency’s priority from South American drug-smuggling to the vulnerability of America’s ports.
In Spring of 2003, Richard Clarke and General John A Gordon (Bush’s Homeland Security Chief) lobbied for Townsend, and as a result she was hired on to the National Security Council.
“Frances Townsend runs President Bush’s far-flung campaign against terrorism.”
“She obviously has the confidence of the president, and that has a huge impact on her ability to influence the process,” said Homeland Security Secretary Michael Chertoff.
She is the ‘coordinator, the facilitator, the bridge,’ as FBI Director Robert S. Mueller III put it, between the powerful institutions and clashing egos of a war cabinet.
Among her many mentors, she counts Secretary of State Condoleezza Rice, longtime FBI Director Louis J. Freeh and former White House counterterrorism czar Richard A. Clarke.
“Townsend has overseen an intelligence reorganization and is now directing the first White House review of its anti-terrorism campaign since the aftermath of Sept. 11, a process intended to broaden the struggle into a new ‘strategy against violent extremism.”
Until a few months prior to 9/11, she had run the Justice Department’s Office of Intelligence Policy and Review that decided which cases merited supersecret intelligence wiretaps, work that took her inside al Qaeda cases, such as the 1998 embassy bombings in Africa.”
“Her office would be a focus of controversy after Sept. 11. As the gatekeeper for intelligence wiretap requests, Townsend’s office fought efforts to invoke the Foreign Intelligence Surveillance Act in matters that could result in criminal cases, fearing that prosecutors would use such surveillance to circumvent the more difficult threshold for obtaining a criminal wiretap. In practical terms, the result was what commission reports called “The Wall,” fencing off investigators from potentially useful information about suspects on American soil.
In an example cited by a bipartisan congressional commission, Townsend refused to endorse a secret intelligence wiretap on Los Alamos National Laboratories scientist Wen Ho Lee because the FBI’s interest in the case was “way too criminal.”
Ho Wen Lee
This guy was under investigation by the FBI after the Chinese obtained classified nuclear secrets.
After an intelligence agent from the People’s Republic of China (PRC) gave U.S. agents papers which indicated that they knew the design of a particularly modern U.S. nuclear warhead, the Federal Bureau of Investigation (FBI) started an investigation codenamed Operation Kindred Spirit to look into how China could have obtained that design.
He lied to the FBI several times.
In 1982, Lee was recorded on a wiretap speaking with another Taiwanese-American scientist who had been accused of espionage. Lee offered to the scientist to find out who had turned him in. When confronted by the FBI about this incident, Lee said he did not know the scientist, until the FBI demonstrated proof of the conversation. Despite some evidence that could have kept the case open, the FBI closed this file on Lee in 1984.
FBI leadership acted very strangely. Closed the case.
Lee did not get the attention of the FBI again for 12 years until 1998. The FBI had lost the file on Lee from the 1983 and 1984 meetings with him, and had to reconstruct the information.
In 1994, a delegation of Chinese scientists visited Los Alamos National Laboratory in an unannounced capacity for a meeting.
One of the scientists visiting was Dr. Hu Side, the head of the Chinese Academy of Engineering Physics, essentially the head of the Chinese nuclear program. He also was credited with the design of the small, W88-like weapon. However, despite the visit being unannounced, Lee showed up to the meeting uninvited. Side and Lee clearly knew each other and were friendly.
This alarmed LANL officials who contacted the FBI, which opened up another investigation of Lee. On December 23, 1998 Lee was given a polygraph test by Wackenhut, a DOE contractor. He was not told of the reason why, other than that it involved his latest trip to China to escort his nephew. During the questioning, he admitted that he had, in fact, met with Dr. Hu Side in a hotel room in 1988 and that Side had asked him for classified information, which he refused to discuss.
Lee admitted that he failed to report this contact and approach by individuals requesting classified information as required by security regulations. He was told that he passed the test, but was stripped of his Q (classified) clearance to the LANL’s classified X Division section. Although he questioned the action against him, Lee went along, deleting the classified information he held on his computers, and moved to the T (unclassified) clearance zone. He was later subjected to three more polygraph tests before being told by the FBI agents that re-evaluation of the test results showed that Lee had failed all of them.
There were 60 agents and more assigned to Lee’s case, working to prove that he was a spy. The FBI conducted a search of Lee’s house on April 10, seizing any item related to computers or computing, as well as anything that had notations written in Chinese. The FBI and the Department of Energy then decided to conduct a full forensic examination of Lee’s office computer. The examination of Lee’s computer determined that he had backed up his work files, which were restricted though not classified, onto tapes, and had also transferred these files from a system used for processing classified data onto another, also secure, system designated for unclassified data.
After the FBI discovered Lee’s transfer, they revoked his badge access and clearance, including his ability to access the data from the unclassified but secure network. Lee then requested from a colleague in another part of Los Alamos to be allowed to use his computer, at which time he transferred the data to a third unclassified computer network. The government then retroactively redesignated the data Lee had copied, changing it from its former designation of “PARD” (Protect As Restricted Data), which was just above the “Unclassified” designation and contained 99 percent unclassified data, to a new designation of “Secret” (which was treated on a higher security level than PARD), giving them the crime that the government needed for a formal charge.
The Department of Justice constructed its case around the only real evidence of malfeasance, the downloading of the restricted information. It ultimately employed an unusual strategy of trying to prove that in addition to illegally handling information, Lee was trying to injure the United States by denying it the exclusivity of the nuclear information. Lee was indicted on 53 counts of mishandling information. Janet Reno confirmed with CIA Director George Tenet and Louis Freeh that if the presiding judge rules that if the government must reveal in open court what specifically was on the tapes, the prosecution would have to plea out the case or risk jeopardizing state secrets.
FBI Announces Restructuring | FBI | JUL 26, 2006
Director Robert S. Mueller announced structural changes to support the next phase of the FBI’s transformation efforts.
Director Mueller said, “The initial phase of our post-9/11 transformation was our immediate response to the new terrorist threat. The next phase focused on developing enhanced intelligence capabilities.”
“Today we are aligning our organization to better support our priorities. This includes a strategic approach to human resources, IT, science and technology, facilities, and budget. This last phase is about institutionalizing the changes we have made to date, and building a foundation to support us into the future.”
The FBI began a huge transformation after 9/11. The Bureau’s leadership shifted their focus from fighting conventional crime to fighting terrorism. Director Robert Mueller, describes the structural change as three phases.
Phase 1: The immediate response to 9/11, which included the investigation, establishment of new priorities and the shift toward countering terrorism.
Phase 2: Developed enhanced intelligence capabilities, including the creation of the Directorate of Intelligence and doubled the number of intelligence analysts.
Phase 3: Institutionalizing the changes made to date by altering the command structure to meet the demands of our increased pace of operations and build the foundation for the future.
In July, 2006, Mueller publicly announced the FBI’s advance into the final phase.
A Redeployment at a Realigned FBI | LA TIMES | JUL 27, 2006
WASHINGTON — The FBI broke with one of its most storied traditions Wednesday, announcing changes in its top management that, rather than elevating onetime agents, tapped officials with extensive experience outside of the bureau for several key positions.
Former officials of BP, Los Alamos National Laboratory and the CIA are named to lead branches as the bureau shifts its focus from crime to terrorism. – The changes leave FBI careerists in charge of the bureau’s criminal and intelligence branches. Mueller also named a longtime agent to fill a new position of associate deputy director, but he created three positions that he filled with bureau employees who made their mark elsewhere:
Donald E. Packham, a former BP senior executive, will oversee human resources and training.
Kerry E. Haynes, a former CIA director of technical collection, was picked to run a new science and technology branch.
Chief Information Officer Zalmai Azmi, whose resume includes a stint as a project manager at the U.S. Patent and Trademark Office, was given expanded duties in his role overseeing the bureau’s computer operations.
Mueller also established a unit to study threats from weapons of mass destruction and named Vahid Majidi, a scientist formerly at the Los Alamos National Laboratory, as its director.
U.S. Tries to Make It Easier to Wiretap the Internet | NEW YORK TIMES | SEP 27, 2010
Federal law enforcement and national security officials are preparing to seek sweeping new regulations for the Internet, arguing that their ability to wiretap criminal and terrorism suspects is “going dark” as people increasingly communicate online instead of by telephone.
Essentially, officials want Congress to require all services that enable communications to be technically capable of complying if served with a wiretap order. The mandate would include being able to intercept and unscramble.
Newly Released Documents Detail FBI’s Plan to Expand Federal Surveillance Laws | ELECTRONIC FRONTIER FOUNDATION
The documents detail a fully-formed and well-coordinated plan to expand existing surveillance laws and develop new ones.
We first heard about the FBI’s Going Dark program in 2009, when the agency’s Congressional budget request included an additional $9 million to fund the program (on top of the $233.9 million it already received).
The FBI Has Been Working on “Going Dark” Since at Least 2006 and Has Lobbied Congress and the White House to Support the Program with More Money and Stronger Laws
The FBI and DOJ have been working on amendments to the Communications Assistance for Law Enforcement Act (CALEA) since at least 2006, though their efforts to lobby Congress and the White House have steadily ramped up within the last few years.
The FBI has met with important Congressional committees and with the White House about Going Dark many times since January 2008 and has specific plans to “socialize [its] Strategy with key Congressional members and staff.
January 2008, the FBI director (Mueller) testified before the House and Senate at the annual threat assessment hearing and included a Q&A handout on Going Dark
In March 2008, staff from the Senate Subcommittee on Commerce, Justice, and Science visited the FBI’s Operational Technology Division and had a briefing on Going Dark with Kerry Haynes, the Assistant Director of the Investigative Technologies Division. Topics discussed included “unfunded requirements, level of cooperation/understanding/assistance from DNI, level of sharing and cooperation with IC/telecom and [international] partners, consolidation of tech efforts across industry, working groups/detailees [sic] to consolidate efforts, the ‘data coordination center’ concept.”
The FBI Has Also Worked With State and Local Law Enforcement and Private Government Contractors to Develop and Implement its Strategy
FBI contracted RAND Corporation and Booz, Allen & Hamilton to study the problem and help devise solutions.
Louis Joseph Freeh | FBI
(1975 – 1981) FBI Agent
(1981 – 1991) United States Attorney in the Southern District of NY Freeh was the lead prosecutor of the “Pizza Connection” investigation. The case, prosecuted in the mid-1980s, involved a drug trafficking operation in the United States by Sicilian organized crime members who used pizza parlors as fronts.
(1991 – 1993) Judge for the United States District Court for the Southern District of NY appointed by George H.W. Bush
(1993 – 2001) FBI Director appointed by Clinton. He resigned amid criticism that the FBI needed stronger leadership. This, just after the Robert Hanssen spying allegations. Other FBI cases during Freeh’s tenure included the Vince Foster (in 1993) murder and allegations of incompetence at the FBI crime laboratory.
Upon his resignation, he was praised by Attorney General John Ashcroft, who called him “a model law enforcement officer”. He was replaced by Thomas J. Pickard, who served as acting FBI Director for 71 days until being replaced by Robert Mueller.
(2005) – Freeh (with Howard Means) published a book about his career in the FBI entitled ‘My FBI: Bringing Down the Mafia, Investigating Bill Clinton, and Fighting the War on Terror.’
(2007) – Freeh formed Freeh Group International Solutions, a consulting and investigative with regional offices in Washington DC and New York. Affiliates include Freeh Group Europe and the law firm Freeh, Sporkin & Sullivan, LLP. The latter firm includes Eugene R. Sullivan, a retired Federal Judge in Washington D.C. and Eugene R. Sullivan II amongst partners and Stanley Sporkin as senior counsel. Sporkin is a retired Federal judge who earlier served as head of the Securities and Exchange Commission’s Division of Enforcement and as general counsel to the Central Intelligence Agency.
(NOV 2011) – Penn State hired Freeh to lead in internal investigation into the child sec abuse scandal involving Jerry Sandusky.
According to Penn State President Eric Barron: “There’s no doubt in my mind, Freeh steered everything as if he were a prosecutor trying to convince a court to take the case.”
(JUN 2015) – THE DAILY CALLER – Louis Freeh traveled to Paris to attend a rally sponsored by the National Council of Resistance of Iran (NCRI), which is associated with the Mojahedin-e-Khalq (MEK) organanization led by Maryam Rajavim, which had been formally designated as a terrorist organization.
John Ashcroft | 79th U.S. Attorney General (2001–2005)
Ashcroft was a key administration supporter of the USA Patriot Act.
One of its provisions, Section 215, allows the Federal Bureau of Investigation (FBI) to apply for an order from the Foreign Intelligence Surveillance Court to require production of “any tangible thing” for an investigation.
This provision was criticized by citizen and professional groups concerned about violations of privacy.
While Attorney General, Ashcroft consistently denied that the FBI or any other law enforcement agency had used the Patriot Act to obtain library circulation records or those of retail sales.
According to the sworn testimony of two FBI agents interviewed by the 9/11 Commission, Ashcroft ignored warnings of an imminent al-Qaida attack.
In July 2002, Ashcroft proposed the creation of Operation TIPS, a domestic program in which workers and government employees would inform law enforcement agencies about suspicious behavior they encounter while performing their duties. The program was widely criticized from the beginning, with critics deriding the program as essentially a Domestic Informant Network along the lines of the East German Stasi or the Soviet KGB.
SAME WASHINGTON, DIFFERENT OFFICE | NEW YORK TIMES | MAR 17, 2006
To do so, he has amassed a staff of Republican insiders and rented fancy offices.
For corporations seeking contracts from the growing homeland security budget, Mr. Ashcroft promises to draw on his central role in the war on terror and in helping set up the Department of Homeland Security.
For companies in trouble with regulators, he says his experience in cracking down on corporate corruption can provide valuable insights.
Ashcroft Finds Private-Sector Niche | WASHINGTON POST page 1 | WASHINGTON POST page 2 | AUG 12, 2006
John D. Ashcroft, whose tenure saw the creation of a burgeoning homeland security industry, has emerged as the highest-ranking former Bush administration official to lobby for and invest in companies in that field.
In all, Ashcroft’s firm has 30 clients, many of which make products or technology aimed at homeland security, and about a third of which the firm has not disclosed, to protect client confidentiality. The firm also has equity stakes in eight client companies, a trend the company plans to continue as it gradually turns its focus toward venture capital.
From 1996-2001, Comey served as Managing Assistant U.S. Attorney in charge of the Richmond Division of the United States Attorney for the Eastern District of Virginia. In 1996, Comey acted as deputy special counsel to the Senate Whitewater Committee.
He also served as the lead prosecutor in the case concerning the 1996 Khobar Towers bombing in Saudi Arabia.
Comey was the U.S. Attorney for the Southern District of New York from January 2002 to December 2003. Among his first tasks was to take over the investigation into President Bill Clinton’s controversial pardon of Marc Rich.
Then he was the United States Deputy Attorney General from December 2003 to August 2005. As Deputy Attorney General, Comey was the second-highest-ranking official in the United States Department of Justice (DOJ), and ran its day-to-day operations.
THIS IS A LETTER WRITTEN BY COMEY, ENDORSING ERIC HOLDER FOR ATTORNEY GENERAL (AFTER HE CRITICIZED HIM FOR GRANTING MARC RICH’S PARDON)
U.S. Is Secretly Collecting Records of Verizon Calls | NEW YORK TIMES | JUN 5, 2013
The Obama administration is secretly carrying out a domestic surveillance program under which it is collecting business communications records involving Americans under a hotly debated section of the Patriot Act, according to a highly classified court order disclosed on Wednesday night.
The order from the Foreign Intelligence Surveillance Court in April, directs a Verizon Communications subsidiary, Verizon Business Network Services, to turn over “on an ongoing daily basis” to the National Security Agency all call logs “between the United States and abroad” or “wholly within the United States, including local telephone calls.”
NSA collecting phone records of millions of Verizon customers daily | THE GUARDIAN | JUN 6, 2013
The National Security Agency is currently collecting the telephone records of millions of US customers of Verizon, one of America’s largest telecoms providers, under a top secret court order issued in April.
The order requires Verizon on an “ongoing, daily basis” to give the NSA information on all telephone calls in its systems, both within the US and between the US and other countries.
The document shows that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing.
The unlimited nature of the records being handed over to the NSA is extremely unusual.
FISA court orders typically direct the production of records pertaining to a specific named target who is suspected of being an agent of a terrorist group or foreign state, or a finite set of individually named targets.
In Secret, Court Vastly Broadens Powers of N.S.A. | NEW YORK TIMES | JUL 6, 2013
In more than a dozen classified rulings, the nation’s surveillance court has created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans while pursuing not only terrorism suspects, but also people possibly involved in nuclear proliferation, espionage and cyberattacks, officials say.
The rulings, some nearly 100 pages long, reveal that the court has taken on a much more expansive role by regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny, according to current and former officials familiar with the court’s classified decisions.
The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was once mostly focused on approving case-by-case wiretapping orders.
But since major changes in legislation and greater judicial oversight of intelligence operations were instituted six years ago, it has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come.
National Security Agency contractor, Edward J. Snowden, leaked a classified order from the FISA court, which authorized the collection of all phone-tracing data from Verizon business customers.
The legal interpretation uses a relatively narrow area of the law — used to justify airport screenings, for instance, or drunken-driving checkpoints — and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects.
In one case, intelligence officials were granted access to an e-mail attachment sent within the United States because they said they were worried that the e-mail contained a schematic drawing or a diagram possibly connected to Iran’s nuclear program.
Created by Congress in 1978 as a check against wiretapping abuses by the government, the court meets in a secure, nondescript room in the federal courthouse in Washington. All of the current 11 judges, who serve seven-year terms, were appointed to the special court by Chief Justice John G. Roberts Jr.
A single judge signs most surveillance orders, which totaled nearly 1,800 last year (2012). None of the requests from the intelligence agencies was denied, according to the court.
Unlike the Supreme Court, the FISA court hears from only one side in the case — the government — and its findings are almost never made public.
FBI Director Comments on San Bernardino Matter
The following letter from FBI Director James Comey was posted on Lawfare Blog on February 21, 2016.
The San Bernardino litigation isn’t about trying to set a precedent or send any kind of message. It is about the victims and justice. Fourteen people were slaughtered and many more had their lives and bodies ruined. We owe them a thorough and professional investigation under law. That’s what this is. The American people should expect nothing less from the FBI.
The particular legal issue is actually quite narrow. The relief we seek is limited and its value increasingly obsolete because the technology continues to evolve. We simply want the chance, with a search warrant, to try to guess the terrorist’s passcode without the phone essentially self-destructing and without it taking a decade to guess correctly. That’s it. We don’t want to break anyone’s encryption or set a master key loose on the land. I hope thoughtful people will take the time to understand that. Maybe the phone holds the clue to finding more terrorists. Maybe it doesn’t. But we can’t look the survivors in the eye, or ourselves in the mirror, if we don’t follow this lead.
Reflecting the context of this heart-breaking case, I hope folks will take a deep breath and stop saying the world is ending, but instead use that breath to talk to each other. Although this case is about the innocents attacked in San Bernardino, it does highlight that we have awesome new technology that creates a serious tension between two values we all treasure—privacy and safety. That tension should not be resolved by corporations that sell stuff for a living. It also should not be resolved by the FBI, which investigates for a living. It should be resolved by the American people deciding how we want to govern ourselves in a world we have never seen before. We shouldn’t drift to a place—or be pushed to a place by the loudest voices—because finding the right place, the right balance, will matter to every American for a very long time.
So I hope folks will remember what terrorists did to innocent Americans at a San Bernardino office gathering and why the FBI simply must do all we can under the law to investigate that. And in that sober spirit, I also hope all Americans will participate in the long conversation we must have about how to both embrace the technology we love and get the safety we need.
“Trust us,” they say.