Six ways we were blind to screaming red flags about government surveillance

The secretive Foreign Intelligence Surveillance Act (FISA) court has given the FBI until Jan. 10 to address abuses and lapses identified by the Department of Justice inspector general (IG) in a recent report. That report heavily criticized FBI practices in its long-term spy case that produced no evidence of any American improperly conspiring with Russia during the 2016 presidential election.

Here are six ways we were blind to screaming red flags about government surveillance abuse:

1. FBI Woods Procedures: One red flag came with the creation of FBI “Woods Procedures” nearly two decades ago under then-Director Robert Mueller. These rules were designed to appease the secretive FISA court, which had flagged abuses by FBI officials in wiretap applications submitted to the court. The procedures require strict verification of all facts and sources in a wiretap application by FBI officials all the way up the chain. Facts that cannot be properly verified are to be removed from the application. The Woods Procedures were designed to prevent the very sorts of abuses that FBI officials committed in 2016 and 2017. The problem is, it’s left to the FBI to execute the safety check upon itself, and, apparently, some officials weren’t capable of doing so faithfully. Why were the Woods Procedures set up if the FBI ultimately doesn’t follow them and nobody notices? What makes us think any new, proposed reforms will have a different fate?

2. Congress: Despite many public reports of government surveillance abuses, Congress passed up its most recent opportunity to exercise much-needed oversight. Two years ago, in January 2018, Congress reauthorized Section 702 of the 2008 FISA Amendments Act. It allows the U.S. intelligence community wide latitude to spy on U.S. citizens. Shocking abuses of this government authority were exposed by whistleblower Edward Snowden. Yet Congress voted down a measure to reform the law by adding significant safeguards. Insiders told me that a majority of Democrats and Republicans had favored reforms, but shortly before the vote, the parties’ leaders directed members to renew the surveillance authority without them. Critics say the reauthorization codified “some of the most troubling aspects.” 

3. FISA: The FISA court has documented numerous serious government surveillance abuses over the years, including a scathing review issued by the court in the fall of 2016 accusing the National Security Agency (NSA) of a problematic “lack of candor” that raised constitutional questions. Yet the court remained publicly silent these past three years amid questions, a crisis of confidence and evidence that it had in hand about FBI wrongdoing. The court spoke out only in recent days, well after the damning findings in the IG report. 

4. Election year red flags: Following sporadic reports of intelligence officials misleading Congress about surveilling U.S. citizens — even spying on journalists and political figures and their staffs — there was a series of red flags in 2016 and 2017 that should have drawn attention and action. Some of the same intelligence officials who we now know wanted to keep President Trump from winning the White House apparently modified rules to make it easier to share and leak intelligence involving innocent U.S. citizens (including people connected to the Trump campaign). Obama administration requests reached a crescendo to “unmask” the identities of Americans whose private information supposedly was collected “incidentally” during the monitoring of other targets. There was a long stream of leaks of intelligence information to the media that was harmful to Trump — some of it true, some not — by anonymous sources. Government insider searches of a key NSA database suspiciously peaked. Former top intelligence officials were hired as analysts, appearing on TV almost daily to make anti-Trump claims and accusations that sometimes proved wildly false.

5. FBI Director Christopher Wray: As I have written, FBI Director Christopher Wray falsely testified to Congress that there have been no 702 surveillance abuses. Surprisingly, nobody questioned him about this incorrect claim, even though many documented abuses are in the public record. If the head of this important agency either doesn’t know about surveillance abuses or knows of them and is being misleading, it doesn’t bode well for the notion that he can (or will) clean things up. 

6. The media: With few exceptions, the news media largely delivered a collective yawn after the initial furor over various abuses in recent years. We dropped the ball on seriously reporting on all of this in an impactful way, compliantly chasing the shiny objects tossed by those who wish to direct the narrative. That means that instead of holding accountable those responsible for shocking government surveillance practices, we became distracted by the question of where Snowden was hiding out or how long WikiLeaks founder Julian Assange would avoid U.S. prosecution by living in asylum in the Ecuadorian Embassy in London.

We have in place a system of checks and balances. In each instance, we can see now that they failed us. I, for one, am not shocked to find gambling going on at the casino.

Sharyl Attkisson (@SharylAttkisson) is an Emmy Award-winning investigative journalist, author of The New York Times best-sellers “The Smear” and “Stonewalled,” and host of Sinclair’s Sunday TV program “Full Measure.”