Minimization, the Whitehouse Way

by emptywheel

Back from my pancake and sausage-inducted coma! Mmm pancakes. I've got just two more points about this SSCI report, then I'll let it drop and go clean the house.

A lot of people have been asking why Sheldon Whitehouse voted for the SSCI bill on FISA, even though it offers the telecoms retroactive immunity. While I can't answer that, I do suspect Whitehouse (who, after all, is the only rookie on the SSCI team) is picking his battles. And Whitehouse is fighting a battle that matters going forward: minimization. Minimization is the process by which the government makes sure that any information on non-targeted US persons collected in the course of wiretapping someone else gets hidden and, eventually, destroyed. Minimization is actually something Republicans at least say they back. But it's one of the big things that Mike McConnell found intolerable in the House version of FISA back in August.

What McConnell found intolerable in August basically amounted to giving the FISC the power to review the government's compliance with its own minimization requirements. Rather than having court review, the Administration insisted on a bill that had minimization requirements, but no way to enforce them. The current bill is better--it requires the Inspectors General of DOJ and any relevant Intelligence Community agencies to review their own compliance with minimization requirements.

The Inspectors General of the Department of Justice and of any element of the intelligence community authorized to collect foreign intelligence under subsection (a)--

(A) are authorized to review the compliance of their agency or element  with the targeting and minimization procedures as required by (e) and (f)

And then, presumably using those reviews, the Director of National Intelligence and the Attorney General report semi-annually on that compliance to the FISC and Congress. That's better than what we've got.

But Whitehouse believes (and I agree) that's not good enough. Whitehouse aims to amend this bill in SJC to give FISC--not the IGs of the respective agencies--the review authority.

In protecting the privacy of Americans while conducting surveillance, the critical element is judicial oversight. In the August law, the FISC was authorized only to review the Government’s determination that its surveillance targets persons ―reasonably believed to be outside the United States – and to intervene only if the Government’s determination is ―clearly erroneous. In contrast, under this bill, the FISC will need to approve both the ―targeting determination and the ―minimization procedures that are designed to protect U.S. citizens in America whose communications are intercepted incidentally. This bill also rejects the unduly permissive standard of review that the August law had imposed.

While these changes are positive and significant, there remains important work to be done to improve the bill. The FISC should not be required to approve the minimization procedures for warrantless surveillance of Americans and then forced to ignore their implementation. I have drafted and introduced an amendment that would clarify that the FISC has the same powers to review the Government’s compliance with minimization procedures for warrantless surveillance as it does with the minimization procedures used pursuant to traditional FISA warrants. This change is not yet a part of the bill, but I will continue to press for the Court’s clear authority to check on the implementation of these minimization procedures. U.S. citizens whose communications are incidentally intercepted should enjoy a two-stage protection: the minimization procedures themselves, and the salutary prospect of judicial review of compliance. Engaging more than one branch of government is a traditional protection in our American system of government. [my emphasis]

It's a really important point. Particularly since one of the IGs involved, the CIA's John Helgerson, is being investigated right now because he refuses to rubber stamp torture. So long as the Executive Branch continues to exercise oversight over the Executive Branch, we have no guarantee that it will amount to effective oversight. Not to mention the fact that the bill says the IGs are authorized to conduct oversight of minimization procedures--they're not required to.

The Administration successfully fought effective oversight of minimization procedures in August. And this bill still doesn't provide for effective oversight of minimization. It seems to me we ought to be as concerned about whether some politicized IG gets to rubber stamp the incidental collection of US person data as we are about retroactive immunity.

Comments

[selise]

so, if i understand correctly - what whitehouse really cares about is fisc review of minimization compliance?

but this bill doesn't have that - and yet he still voted for it?

now his votes in the senate intelligence committee make even less sense to me.

[emptywheel]

selise

Yeah, but he did know (or suspect) he'd get a second bite at the apple. That doesn't excuse it, but SJC is going to be a lot more amendable to real amendment than SSCI.