Christmas Comes Early for Government Snoops

Congress has extended Section 702 of the Foreign Intelligence Surveillance Act (FISA), which keeps “the nation’s warrantless surveillance powers” in place until April 2024. The renewal was bundled with the National Defense Authorization Act, approved by 147 Republicans, and will empower the FBI to continue to spy on American citizens.

The government’s point man for the extension is Assistant Attorney General Matthew G. Olsen, who previously served as general counsel for the National Security Agency (NSA)—which, like the FISA court, has been conducting covert surveillance of U.S. persons, also known as American citizens. In 2011, President Barack Obama appointed Olsen to head the National Counterterrorism Center, which failed to prevent the Boston Marathon bombing in 2013 (three deaths) and terrorist mass murders in 2015 in San Bernardino (16 dead), and Orlando in 2016 with 49 dead.

Olsen Advocates For Extending Surveillance

In 2021, Joe Biden nominated Olsen as the assistant attorney general for national security, and Olsen spoke of “securing our country with fidelity to our founding values.” In an Oct. 5 speech, Olsen made a case for renewal of Section 702, claiming a “broad consensus” that intelligence from 702 is “irreplaceable,” and beyond serious dispute. Olsen also claims “progress in explaining how the FBI and the Intelligence Community use 702 to keep Americans safe”—including those pesky “U.S. person inquiries.”

According to Olsen, a Harvard Law alum, “We must be clear that the Constitution simply does not require a warrant for the FBI to examine its lawfully collected holdings, even using U.S. person queries.”The FBI is the only agency with authority to act inside the U.S. against overseas threats, so “it’s especially important for the FBI to conduct U.S. person queries at the early stages of a national security investigation.” Olsen cites recent “compliance issues” and “errors” with such queries but fails to provide any details.

The FBI has implemented “new policies for holding their workforce accountable for FISA compliance” but Olsen does not explain how, exactly, these policies work. Those trusted with FISA access “are held to a high standard” and failure could mean “revoking their FISA access to referring their conduct for further disciplinary action, including termination.”

The assistant attorney for national security cites no cases where such actions have been carried out, but does note that “there is more work to be done.” Many “U.S. persons” might recall the case of Kevin Clinesmith, a lawyer with the FBI’s National Security and Cyber Law division.

The FBI Hasn’t Been Held Accountable

Clinesmith forged a document that exposed Navy veteran Carter Page to FISA surveillance. This was not an “error” or “compliance issue,” but a serious crime punishable by five years in prison and a fine of $250,000. The FBI lawyer got only a year’s probation, a small fine, and community service.

That was the doing of D.C. Circuit Judge James Boasberg, appointed to the FISA court by Chief Justice John Roberts in 2014—no Senate confirmation required—and in January 2020, Boasberg began serving as the presiding judge of the FISA court. According to Boasberg, the FISA court would have approved a warrantless search even without Clinesmith’s forgery, so the judge let him off light and the D.C. Bar even restored his law license.

In his Oct. 5 speech, Olsen failed to mention that case or explain how it squared with those strict new rules that can even result in termination. That omission should come as no surprise.

A former federal prosecutor in the District of Columbia, Olson served as special counsel to the director of the FBI, supporting the post-9/11 transformation of the organization. With all its money and power, the FBI failed to prevent the attack of Sept. 11, 2001, and most of the 3,000 dead were U.S. persons. The FBI also failed to prevent the Boston, Fort Hood, San Bernardino, and Orlando terrorist attacks, and the bureau played no role in the takedown of the terrorists.

By any standard, the FBI has failed at its duly appointed tasks. On the other hand, the bureau succeeds at violating the rights and privacy of U.S. persons, and few if any FBI bosses, agents, or lawyers have been held accountable.

In the run-up to Christmas, Congress renews the FBI’s power to continue warrantless searches on American citizens. Olsen’s pleadings aside, the stronger case is to change the FBI’s motto (Fidelity, Bravery, Integrity) to “Here’s looking at you, kid.”