Our FISA-ist State

“I’m in charge of the National Security Division at the Department of Justice. We are responsible for investigating and prosecuting terrorists, spies and the wide range of threats posed by our most capable and dangerous nation-state adversaries.”

Thus spake Assistant Attorney General Matthew G. Olsen, back on October 5. Here are samples from his 2,000-plus-word speech at the University of Pennsylvania’s Center for Ethics and the Rule of Law:

The issue at the top of my mind every day is how we are going to make sure that Section 702 of the Foreign Intelligence Surveillance Act (FISA) is reauthorized. 702 is the foundational authority for our efforts to protect the nation.

There isn’t a day that goes by that I am not meeting with Justice Department leadership and speaking to counterparts at the FBI, the Intelligence Community and the National Security Council to coordinate our efforts to ensure the United States retains its most valuable collection authority.

Day after day, we are working with members of Congress and legislative staff to move toward bipartisan, common-sense solutions to protect the safety and liberties of Americans.

At this point, there is clearly broad consensus that the intelligence we get from Section 702 is irreplaceable; and there is no serious dispute over its value in protecting Americans.

Second, we have made progress in explaining how the FBI and the Intelligence Community use 702 to keep Americans safe. This includes demonstrating the critical importance of what are often referred to as “U.S. person queries.”

And in many cases, queries of 702 information using identifiers associated with U.S. persons – for example, the name or email address of a U.S. person – are essential to identify links between foreign actors and threats inside the United States.

This is particularly true for the FBI, which is the only agency with the authority to act inside the United States to protect us from threats emanating from overseas. It’s especially important for the FBI to conduct U.S. person queries at the early stages of a national security investigation, whether to run down a terrorism or cyber-related lead, or to enable the FBI to warn and protect victims of foreign hacking or spying.

The reality is that the strength of these protections rests on the rules being followed every time. In the past several years, however, we have identified and reported certain compliance issues with FBI’s use of U.S. person queries. These kinds of errors are unacceptable. We recognized that to maintain the trust of Congress and the American public, we could not wait on legislation to address these problems.

Earlier this year, the FBI implemented new policies for holding their workforce accountable for FISA compliance. These changes ensure that those trusted with FISA access are held to a high standard, and that if they do not meet that standard, clear steps are taken – from revoking their FISA access to referring their conduct for further disciplinary action, including termination. But even though we’ve made progress demonstrating the value of 702 and improving compliance, we know there is more work to be done.

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. But that does not mean we don’t recognize the real privacy implications for Americans. To the contrary, the existing laws and procedures impose several specific protections for the handling of U.S. person information. This is in addition to the protections designed to protect everyone, regardless of nationality.

The path to reaching compromise and consensus requires more effort than staking out extreme positions and hoping the other side blinks before the clock strikes midnight. But we are committed to continuing the hard work to find the right solutions on behalf of our fellow citizens.

Olsen’s “fellow citizens” become “U.S. persons” under FISA. Kevin Clinesmith, a lawyer with the FBI’s National Security and Cyber Law division, forged information about U.S. person Carter Page. That is a serious crime but for Olsen these are only “compliance issues” and “errors,” that are supposedly “unacceptable.” FISA presiding judge James Boasberg had no problem with it.

Assistant attorney general Olsen fails to outline the FBI’s policies for “holding their workforce accountable.” These include disciplinary action or termination, but no number for any FBI agents disciplined or terminated. A ballpark figure might be zero. Olsen says “there is more work to be done,” which “U.S. persons” might take as confirmation that nothing has been done, and that makes perfect sense.

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 FBI. As U.S. persons might recall, the FBI failed to prevent 9/11, the worst attack on American since Pearl Harbor. After 2008, the composite character David Garrow described in Rising Star: The Making of Barack Obama, changed the FBI’s focus from Islamic terrorism to his domestic opposition.

Obama’s FBI knew Maj. Nidal Hasan was communication with al Qaeda about killing Americans but dropped surveillance of the self-proclaimed “soldier of Allah,” who murdered 13 U.S. persons at Fort Hood on November 5, 2009. No word from Olsen whether any FBI bosses were disciplined, demoted or dismissed.

Olsen served as general counsel for the National Security Agency (NSA) which has also been conducting covert surveillance of U.S. persons. In 2011, Obama appointed Olsen to head the National Counterterrorism Center (NCTC), hailing his “distinguished record of service in our intelligence community,” and part of a team doing “everything in our power to protect the American people.”

As U.S. persons might note, the NCTC, NSA and FBI failed to prevent Islamic terrorist attacks at the Boston Marathon in 2013 (three deaths) San Bernardino in 2015 (14 dead), and Orlando in 2016 with 49 dead. On the other hand, FISA successfully empowered FBI covert operations against U.S. persons innocent of any crime and not a threat to national security.

In 2021, Joe Biden nominated Matthew Olsen for Assistant Attorney General for National Security, and Olsen spoke of “securing our country with fidelity to our founding values.” On September 1, 2022, Biden targeted those Americans who want the nation to be great as the primary threat. That is hard to square with America’s founding values.

Matthew Olsen talks a good game but the Harvard Law alum is basically a defender of the FISAist state. Olsen wanted FISA surveillance to continue and last week Congress granted his wish. Look for the FBI to mount covert operations worse that the ones this deep-state mouthpiece passes off as “errors” and “compliance issues,” with no one held accountable.

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