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Response to NeoKhan (Reply #45)

Mon Mar 20, 2017, 05:24 PM

50. Here Neo

FISA commentary from Law Warfare:

Questioning the legality of the US Intelligence Community’s (USIC) interception or use of communications involving Flynn. As David Kris has already explained, this misunderstands how FISA both protects US person privacy and ensures that the government remains able to obtain and use intelligence necessary to protect the nation. Given the level of confusion generated by these reports, I think it would be helpful to further flesh out when the USIC can legally acquire and use intercepted communications involving US persons who are not themselves the government’s target.

The Wall Street Journal asks ominously whether “the spooks listening to Mr. Flynn obeyed the law.” And the Journal inaccurately states that FISA does not let the USIC “listen to the communications of Americans who may be caught in such eavesdropping” (this also assumes the American was not an authorized FISA target himself). Yet there is no prohibition on listening to both ends of a conversation when the USIC is conducting court-authorized surveillance of a communication facility used by an agent of a foreign power. There are, however, significant restrictions on how the USIC can use any US person information thereby acquired.

Specifically, the FBI, CIA, and National Security Agency each operates under FISA “minimization” procedures that establish protections over the retention and dissemination of US persons' private information. Nonpublicly available information of an unconsenting US person cannot be disseminated without all identifying information being masked, or “minimized.” Minimization, in turn, is subject to extensive executive and judicial oversight.

There is, however, an important exception for US person information that (1) meets the statutory definition of “foreign intelligence,” (2) is necessary to understand foreign intelligence (as Kris highlighted on Tuesday), or (3) is evidence of a crime. US person information that falls into one of these buckets does not have to be masked. The law does not require that the USIC turn a blind eye, nor should it. The USIC can use and disseminate pursuant to the minimization procedures this “unminimized” information, including the identity of a US person, if the standard is met as to that information.

You are referring to section 702 of FISA. That is not the case in this matter. 702 deals with:

Section 702 of the Foreign Intelligence Surveillance Act

Section 702 refers to part of the Foreign Intelligence Surveillance Act (FISA) Amendments of 2008, Section 702 (50 USC 1881a). This provision of FISA faciliates the acquisition of foreign intelligence information concerning non-U.S. persons located outside the United States, creating a new, more streamlined procedure to collect the communications of foreign terrorists.

The Congress will continue to investigate who leaked Flynn's name. It may have come from inside the WH or from the IC. More than likely out of the NYC office of the FBI. Some hard core guys who do not like the Russians and really get pissed when someone inside the US works with them.

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