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For Immediate Release
July, 21 2023, 05:55pm EDT
Contact:
Brian Wesolowski,Director of Communications,press@cdt.org,+1 (202) 407-8814
New FISA Court Opinion Reveals More of the Same: Systemic Misuse of FISA 702
The Office of the Director of National Intelligence (ODNI) released a new FISA Court opinion today on FISA Section 702 that demonstrates a continued pattern of violating the rules regarding U.S. person queries and shocking new revelations of abuse. FISA Section 702, enacted in 2008, was originally justified as a counter-terrorism authority focused exclusively on foreigners abroad, but it has morphed into a sprawling warrantless surveillance system for sweeping in and scrutinizing communications of Americans and others in the United States.
In particular, the FISA Court revealed that in 2022, the FBI conducted improper queries to pull up the communications of a U.S. Senator, an unnamed State Senator, and a judge who had complained to the FBI about civil rights violations by a local police chief. None of these queries were likely to return foreign intelligence information or evidence of crimes.
Jake Laperruque, Deputy Director of CDT’s Security & Surveillance Project, says:
“One warrantless query for Americans’ private communications is one too many, and this opinion shows the government is still conducting hundreds of thousands per year, including thousands in violation of their own lax rules.
These new revelations of misconduct show yet again that lack of oversight invites abuse, and that it’s impossible to fix FISA 702 without adding a warrant rule for US person queries.”
Despite government claims that the situation is improving, noncompliance is still rampant. An audit of an FBI office—which had previously queried a batch of 19,000 campaign donors—found that even after new internal measures, improper queries were still occurring over 4 times per week on average.
The FISA court opinion stated FBI US person queries have “leveled off” at an astounding 40,000 to 50,000 per quarter, consistent with prior reporting of roughly 200,000 US person queries per year; even with the improved compliance rate cited this would result in thousands of non-compliant queries per year. The court also revealed new instances where queries were conducted in circumstances without the court order required by law, a statutory requirement that the FBI has violated in every applicable incident since its creation in 2018.
Laperruque added:
“The new information gives no cause for celebration. Claiming this level of warrantless surveillance and abuse is a positive sign is like giving a restaurant a five-star review because the meal was awful but didn’t give you food poisoning like last time.”
Additionally, the FISA Court opinion revealed a troubling expansion of queries by the NSA, conducted to vet individuals applying for immigration benefits. While the court’s opinion does not specify a range of benefits, it does indicate that some US persons who are lawful permanent residents are included. These queries are conducted on a dragnet basis and do not require expectations of returning foreign intelligence information or evidence of a crime.
The Center for Democracy and Technology works to promote democratic values and constitutional liberties in the digital age. With expertise in law, technology, and policy, CDT seeks practical solutions to enhance free expression and privacy in global communications technologies. CDT is dedicated to building consensus among all parties interested in the future of the Internet and other new communications media.
LATEST NEWS
Senate Rejects Sanders' Bid to Halt Arms to Israel Over Gaza Atrocities
"Our taxpayer dollars should be used to fund education, housing, and healthcare for Americans, not to support the destruction of innocent lives abroad," said one advocacy leader "deeply saddened" by the votes.
Nov 20, 2024
The U.S. Senate on Wednesday refused to pass joint resolutions of disapproval proposed by Sen. Bernie Sanders that would prevent the sale of certain offensive American weaponry to Israel, which has killed nearly 44,000 Palestinians in Gaza since last fall.
S.J. Res. 111, S.J. Res. 113, and S.J. Res. 115 would have respectively blocked the sale of 120mm tank rounds, 120mm high-explosive mortar rounds, Joint Direct Attack Munitions (JDAMs), the guidance kits attached to "dumb bombs."
The first vote was
18-79, with Sen. Tammy Baldwin (D-Wis.) voting present and Sens. Mike Braun (R-Ind.) and JD Vance (R-Ohio)—the vice-president-elect—not voting. In addition to Sanders (I-Vt.), those in favor were: Sens. Dick Durbin (D-Ill.), Martin Heinrich (D-N.M.), Mazie Hirono (D-Hawaii), Tim Kaine (D-Va.), Angus King (I-Maine), Ben Ray Lujan (D-N.M.), Ed Markey (D-Mass.), Jeff Merkley (D-Ore.), Chris Murphy (D-Conn.), Jon Ossoff (D-Ga.), Brian Schatz (D-Hawaii), Jeanne Shaheen (D-N.H.), Tina Smith (D-Minn.), Chris Van Hollen (D-Md.), Raphael Warnock (D-Ga.), Elizabeth Warren (D-Mass.), and Peter Welch (D-Vt.).
The second vote was 19-78—Sen. George Helmy (D-N.J.) joined those voting for the resolution. The third vote was 17-80.
"What this extremist government has done in Gaza is unspeakable, but what makes it even more painful is that much of this has been done with U.S. weapons and American taxpayer dollars."
Ahead of the votes, Sanders took to the Senate floor to highlight that his resolutions were backed by over 100 groups, including pro-Israel J Street; leading labor organizations such as the Service Employees International Union, United Auto Workers, and United Electrical Workers; humanitarian groups like Amnesty International; and various faith organizations.
"I would also point out that poll after poll shows that a strong majority of the American people oppose sending more weapons and military aid to fund Netanyahu's war machine," the senator said, referring to Israeli Prime Minister Benjamin Netanyahu. "According to a poll commissioned by J Street... 62% of Jewish Americans support withholding weapons shipments to Israel until Netanyahu agrees to an immediate cease-fire."
In addition to stressing that his proposals would not affect any of the systems Israel uses to defend itself from incoming attacks, Sanders argued that "from a legal perspective, these resolutions are simple, straightforward, and not complicated. Bottom line: The United States government must obey the law—not a very radical idea. But unfortunately, that is not the case now."
"The Foreign Assistance Act and the Arms Export Control Act are very clear: The United States cannot provide weapons to countries that violate internationally recognized human rights or block U.S. humanitarian aid," he continued. "According to the United Nations, according to much of the international community, according to virtually every humanitarian organization on the ground in Gaza, Israel is clearly in violation of these laws."
To illustrate the devastating impact of Israel's assault on Gaza—which has led to a genocide case at the International Court of Justice—Sanders quoted from an October New York Timesopinion essay authored by American doctors who volunteered in Gaza. For example, Dr. Ndal Farah from Ohio said: "Malnutrition was widespread. It was common to see patients reminiscent of Nazi concentration camps with skeletal features."
Sanders said that "what this extremist government has done in Gaza is unspeakable, but what makes it even more painful is that much of this has been done with U.S. weapons and American taxpayer dollars. In the last year alone, the U.S. has provided $18 billion in military aid to Israel... and by the way, a few blocks from here, people are sleeping out on the street."
"We have also delivered more than 50,000 tons of military equipment to Israel," he added. "In other words... the United States of America is complicit in all of these atrocities. We are funding these atrocities. That complicity must end, and that is what these resolutions are about."
Merkley, Van Hollen, and Welch joined Sanders in speaking in favor of the resolutions on Wednesday. Members of both parties also spoke out against them: Senate Majority Leader Chuck Schumer (D-N.Y.) and Sens. Ted Budd (R-N.C.), Ben Cardin (D-Md.), Lindsey Graham (R-S.C.), John Kennedy (R-La.), James Risch (R-Idaho), and Jacky Rosen (D-Nev.).
Cardin quoted talking points from the White House that were reported on earlier Wednesday by HuffPost. The outlet detailed how officials in outgoing President Joe Biden's administration suggested that "lawmakers who vote against the arms are empowering American and Israeli foes from Iran to the militant groups Hamas and Hezbollah, which the U.S. treats as terror organizations."
Just hours before the Senate debate, the Biden administration vetoed a United Nations Security Council resolution calling for an immediate cease-fire in Gaza—the fourth time it has blocked such a measure at the world body since the Hamas-led October 7, 2023 attack on Israel.
After the Senate votes, groups that supported Sanders' resolutions expressed disappointment.
Wa'el Alzayat, CEO of the Muslim advocacy group Emgage Action, said in a statement that "we have a moral obligation to stand up for the people of Gaza and demand an end to the constant bombardment they face. I'm deeply saddened that our U.S. senators shot down the joint resolutions calling for a halt in weapons to Israel. Our taxpayer dollars should be used to fund education, housing, and healthcare for Americans, not to support the destruction of innocent lives abroad."
"Continuing to provide Israel with unrestricted military aid to attack innocent civilians in Gaza and Lebanon is a moral failure—one the American government will look back on in horror as the situation gets unimaginably worse," Alzayat added. "While the resolution did not pass this time, we will continue working with lawmakers and allies to advocate for legislation that promotes justice and adherence to international law."
While these resolutions did not advance to the House of Representatives, Demand Progress senior policy adviser Cavan Kharrazian noted that "never before have so many senators voted to restrict arms transfers to Israel, and we are extremely grateful to those who did. This historic vote represents a sea change in how elected Democrats feel about the Israeli military's campaign of death and destruction in Gaza."
"We have all seen with our own eyes the thousands of innocent civilians who have been killed, displaced, and starved by weapons paid for with U.S. tax dollars," Kharrazian said. "Now, almost half of the Senate Democratic caucus is backing up our collective outrage with their votes. Supporters of this destructive war will try to claim victory but even they know that today's vote proves that the movement to end the war is growing, across America and in Congress, and we won't stop."
Center for International Policy executive vice president Matt Duss, who formerly served as Sanders' foreign policy adviser, similarly welcomed the progress, commending those who voted in favor of the resolutions for having "the courage to stand up for U.S. law, the rights of civilians in conflict, and basic decency."
"As civilian deaths, displacement, and disease among Palestinians in Gaza mount alongside open calls for ethnic cleansing by Israeli officials, the Biden administration is not merely failing to act—it is actively enabling the Netanyahu government's war crimes," he continued. "Rather than taking steps to bolster democracy, rights, and rule of law at home and abroad in advance of [President-elect] Donald Trump's second term, President Biden and his top officials are spending their precious last days in office lobbying against measures to protect U.S. interests and vetoing otherwise unanimously supported resolutions in the United Nations Security Council that reflect its own stated policies."
"The lawmakers who stood on the right side of history today will be remembered for their leadership and humanity," he added. "The same cannot be said about President Biden and those who help him abet starvation and slaughter in Gaza."
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After Previously Voting With GOP, 52 House Dems Targeted to Oppose 'Nonprofit Killer' Bill
"Every nonprofit across the spectrum of human rights and progressive values is up in arms, begging Democrats to overcome their greed and their spite, and not to hand President-elect Trump the ability to destroy any nonprofit he dislikes with the flick of a pen," wrote one campaigner.
Nov 20, 2024
House Republicans have revived an effort to pass the so-called "nonprofit killer" bill—a piece of legislation that, if passed, would hand U.S. President-elect Donald Trump the ability to sanction civil society groups, including government watchdogs, news outlets, and humanitarian organizations.
A vote on the Stop Terror-Financing and Tax Penalties on American Hostages Act (H.R. 9495), which would allow the Treasury Department to remove tax-exempt status from nonprofits deemed "terrorist supporting organizations," is expected on Thursday.
But a wide coalition of organizations and individuals have voiced their opposition to the bill, including multiple groups that have mobilized to pressure House members to vote against it, particularly the 52 Democrats who previously voted in favor of it.
The controversial bill was blocked last week when 144 Democrats and one Republican voted against the bill after it was fast-tracked under a procedure that requires two-thirds majority support for passage. Republicans then brought it back through the House Rules Committee, teeing it up for a simple majority floor vote.
The 52 Democrats who voted in favor of the bill include Reps. Adam Schiff (D-Calif.), Henry Cuellar (D-Texas), and Ritchie Torres (D-N.Y.).
Groups including Muslims for Progressive Values, Fight for the Future, Council on American-Islamic Relations, and the union The NewsGuild-CWA have launched an advocacy effort to pressure those 52 Democrats to flip their votes and urge all members of the House to vote no on the bill.
"H.R. 9495 is a threat to our basic right to free speech, dissent, and advocacy. Democrats who claim to defend democracy must be called out for their SUPPORT of this bill. This bill will silence non-profits who speak up for human rights of Palestinians, reproductive rights, against deportations or ANY government policies," wrote Muslims for Progressive Values.
Some of Democrats who voted in favor have since said they will no longer support the bill.
Rep. Gabe Vasquez (D-N.M.) released the following statement on Monday: "I have heard loud and clear from folks in my district and understand the concerns of my constituents, non-profit leaders and their staff. The incoming administration's recent Cabinet nominations give me little faith that this tool would be used as originally intended. Therefore, I have decided to vote against H.R. 9495 and will continue acting in our district's and nation's best interests."
There is fear that the bill would, in particular, have a chilling impact on Palestinian rights organizations and pro-Palestine speech.
"This bill was designed to criminalize organizations and activists who oppose the U.S.'s unconditional support of Israel's genocide of Palestinians and the slaughter of Lebanese civilians. Such legislation threatened the constitutional rights of American nonprofits, houses of worship, and advocacy organizations—regardless of political orientation. Lawmakers must understand the serious, long-term dangers of advancing bills or investigations that seek to suppress lawful activism and silence dissent," according to a joint statement issued by Arab and Muslim American groups last week.
Lia Holland, the campaigns and communications director at Fight for the Future, said in a statement that "it's a disappointment but not a surprise to find Democrats voting for a bill to punish student protests against genocide on the wrong side of their entire values system. Over and over again, we've seen how legislative efforts designed to oppress dissent and silence speech end up burning their progenitors."
"H.R. 9495 is no exception—now, every nonprofit across the spectrum of human rights and progressive values is up in arms, begging Democrats to overcome their greed and their spite, and not to hand President-elect Trump the ability to destroy any nonprofit he dislikes with the flick of a pen," Holland added.
Others have also critiqued the proposed legislation on broader civil rights and free speech grounds.
"H.R. 9495 provides no due process or oversight, creating a tool for political retaliation under the guise of 'fighting terrorism.' Trump would abuse this power to retaliate against any [organization] that challenges his agenda. The 52 Dems who initially supported it must reverse course," wrote former Labor Secretary Robert Reich.
Kia Hamadanchy, senior federal policy counsel at the ACLU, said that "every time we give the president new powers and more authority to act alone, we create an open invitation for abuse by the executive branch."
"While the ACLU would oppose this legislation no matter who the president is, and there is no question it could be weaponized against groups on both ends of the ideological spectrum," Hamadanchy added, "the rhetoric we saw on the campaign trail from the president-elect is even more reason for Congress to reject this bill."
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GOP-Controlled House Ethics Panel Votes to Keep Gaetz Report Secret
"The American people deserve transparency from their elected officials, especially when it comes to evaluating the nominee to become our nation’s chief law enforcement officer," said one critic.
Nov 20, 2024
Critics slammed the Republican-controlled U.S. House Ethics Committee on Wednesday after the panel decided against releasing a report on sexual misconduct allegations against former U.S. Rep. Matt Gaetz, who has been nominated by President-elect Donald Trump to serve as attorney general.
Committee Chair Michael Guest (R-Miss.) told reporters that "there was not an agreement by the committee to release the report," while Rep. Susan Wild (D-Penn.) clarified that "a vote was taken."
Julie Tsirkin, congressional correspondent for NBC News, said Wild "suggested all Democrats voted yes, all Republicans voted no."
Christina Harvey, executive director of Stand Up America, called on the committee to "release the full report immediately" and warned that "failing to make it public would be a betrayal of the public trust and a dangerous precedent for our democracy."
Committee investigators have been examining allegations that Gaetz paid to have sex with a 17-year-old at parties while he was serving in Congress.
The investigators obtained records showing that Gaetz paid more than $10,000 to two women who testified before the committee. The records showed 27 PayPal and Venmo transfers from Gaetz between July 2017 and January 2019, some of which were allegedly payments for sex.
The allegations were also part of an FBI investigation into whether Gaetz was involved in sex trafficking of a minor. That probe was dropped without charges.
"The American people deserve transparency from their elected officials, especially when it comes to evaluating the nominee to become our nation’s chief law enforcement officer," said Harvey. "The Senate can't fulfill its constitutional duty to advise and consent on the president's nominees without access to the report and all evidence of the numerous allegations of Gaetz's sexual misconduct."
Gaetz abruptly resigned from Congress hours after Trump announced his nomination. The resignation meant Gaetz was no longer under the congressional committee's jurisdiction, and several lawmakers suggested the former Florida congressman aimed to avoid the release of the report. House Speaker Mike Johnson (R-La.) has pushed for the report to remain confidential considering Gaetz's resignation.
As the House committee was weighing whether to release the documents, Republicans on the Senate Judiciary Committee met with Gaetz ahead of his confirmation process. Vice President-elect JD Vance (R-Ohio) suggested on social media as the meetings were taking place that senators should support Trump's nomination, saying the party rode the president-elect's "coattails" to a Senate and House majority.
"He deserves a cabinet that is loyal to the agenda he was elected to implement," Vance said.
The House Ethics Committee report could still be released, either by someone who leaks it to the media or a lawmaker who could read it into the congressional record—an act that could lead to censure or expulsion from Congress.
As it stands, podcast host Brian Tyler Cohen said, "the House Ethics Committee Republicans are now complicit in trying to bury a potentially 'highly damaging' report into Matt Gaetz."
"Trump says jump, Republicans say 'how high,'" he said, "even if it means shielding sex trafficking of a minor."
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