Here’s my summary of what we learned from Ed Snowden’s revelations in 2013 and the official responses to them in Western democracies:
- There was astonishingly intensive and comprehensive state surveillance under inadequate democratic oversight in these democracies.
- There then followed various official and semi-official inquiries in the US, the UK and elsewhere.
- In some cases, these inquiries led to limited reforms. The US Oversight system remained broadly untouched. The UK had three separate inquiries, followed by a new Investigatory Powers Act, which enhanced some kinds of Judicial oversight, but also added new powers for the security services (e.g. ‘equipment interference’ and warrantless clickstream logging).
- The result: comprehensive state surveillance continues, under slightly less inadequate democratic oversight.
Now comes yesterday’s US Inspector General’s report into the FBI’s Russia investigation. It provides a peek under the hood of how the secret FISA Court process works, post-Snowden. “ At more than 400 pages”, says the New York Times, “the study amounted to the most searching look ever at the government’s secretive system for carrying out national-security surveillance on American soil. And what the report showed was not pretty”…
That’s putting it mildly. The Justice Department’s independent inspector general, Michael E. Horowitz, and his team uncovered a staggeringly dysfunctional and error-ridden process in how the F.B.I. went about obtaining and renewing court permission under the Foreign Intelligence Surveillance Act, or FISA, to wiretap Carter Page, a former Trump campaign adviser.
“The litany of problems with the Carter Page surveillance applications demonstrates how the secrecy shrouding the government’s one-sided FISA approval process breeds abuse,” said Hina Shamsi, the director of the American Civil Liberties Union’s National Security Project. “The concerns the inspector general identifies apply to intrusive investigations of others, including especially Muslims, and far better safeguards against abuse are necessary.”
Congress enacted FISA in 1978 to regulate domestic surveillance for national-security investigations — monitoring suspected spies and terrorists, as opposed to ordinary criminals. Investigators must persuade a judge on a special court that a target is probably an agent of a foreign power. In 2018, there were 1,833 targets of such orders, including 232 Americans.
Most of those targets never learn that their privacy has been invaded, but some are sent to prison on the basis of evidence derived from the surveillance. And unlike in ordinary criminal wiretap cases, defendants are not permitted to see what investigators told the court about them to obtain permission to eavesdrop on their calls and emails.
According to the Times’s account, the inspector general found major errors, material omissions and unsupported statements about Mr. Page [the target of the surveillance] in the materials that went to the court. F.B.I. agents cherry-picked the evidence, telling the Justice Department information that made Mr. Page look suspicious and omitting material that cut the other way, and the department passed that misleading portrait onto the court.
Lots more in that vein. The surprising thing is that anybody should be surprised. That’s not to say that Carter was not a legitimate target for surveillance, by the way. But democracy dies in darkness.