Newly released documents pertaining to the FBI’s surveillance of the editors of an anti-war news site shed new light on how the government has long kept the existence of information derived from foreign intelligence surveillance secret from criminal defendants.

Some background is required to understand the significance of this revelation.

When the ACLU tried to challenge the constitutionality of the FISA Amendments Act — section 702 of which serves as the NSA’s legal justification for programs like PRISM — our attorneys and clients were blocked from the court. The government argued, and the Supreme Court agreed, that since we didn’t have transcripts or other documents proving that our clients had been targeted under the statute, we didn’t have a legal right (‘standing’) to bring the lawsuit. 

If you can’t prove you were spied on under FAA, you can’t challenge it. Given that surveillance is by nature secret, how could anyone ever challenge the constitutionality of the law?

The government’s lawyers wanted the Supreme Court to think that someone, somewhere would have the opportunity to challenge the law’s constitutionality. So the Solicitor General told the justices that defendants would of course be informed if the government used evidence derived from a FISA order in a criminal prosecution against them. The government claimed that the reason the issue had never been raised before the court was because evidence derived from FAA powers had never been used against anyone in a criminal prosecution.

We now know that assertion was false.

In October 2013, the New York Times reported that the Solicitor General’s “assurances [to the Supreme Court] clashed with the practices of national security prosecutors, who had not been alerting such defendants that evidence in their cases had stemmed from wiretapping their conversations without a warrant.”

Before (and likely even after) Edward Snowden’s leaks, the government’s secret policy was to hide evidence from criminal defendants if it was derived from warrantless wiretaps authorized under the FISA Amendments Act. This secrecy had the effect of shielding the law from constitutional review in the courts. 

The government explained the discrepancy between what its Solicitor General told the Supreme Court and what its national security prosecutors did in practice thusly, as written by Charlie Savage:

The national security lawyers explained that it was a misunderstanding, the officials said. Because the rules on wiretapping warrants in foreign intelligence cases are different from the rules in ordinary criminal investigations, they said, the division has long used a narrow understanding of what “derived from” means in terms of when it must disclose specifics to defendants.

Documents obtained by the ACLU of Northern California show that, as far back as 2004, the FBI was instructing its case agents to keep secret from criminal defendants information derived from FISA surveillance programs. We now know that the Bush administration’s warrantless wiretapping was in full effect in 2004, though the FISA Amendments Act that attempted to legitimize the program didn’t pass until 2008. Could it be that word had spread all the way down to FBI special agents that something off the books was happening under FISA authorities, and that information derived from these programs was to be closely guarded and never revealed publicly?

Among the 47 heavily redacted documents revealing that the FBI spied on antiwar.com founding editors Eric Garris and Justin Raimondo is a “threat assessment” of the two men. The document, which originated from the Newark FBI office and was sent to offices in New York, Philly, St. Louis, and San Francisco, is titled “IT – Pakistan”, “IT – UBL/AL QAEDA” (IT stands for ‘International Terrorism’). (See Marcy Wheeler for a broader discussion of the contents of the threat assessment.)

On the front page of the memo, the FBI agent wrote in bold typeface:

Administrative: This document contains information obtained under the authority of the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C., Section 1801. Such FISA derived information shall not be used in any criminal proceeding, including grand jury proceedings and warrant affidavits, without the express written approval of the Attorney General of the United States. FISA derived information concerning any U.S. Person may not be disseminated to a foreign government without prior Attorney General approval.

Amidst heavy redactions, the FBI left the following sentence unredacted. It’s the only other mention of FISA derived information in the document:

There are four FISA derived references located at Newark. They are 315B-NK-102595-EL6 serials 65, 71, 72 and 80. 

The redactions in the document make it difficult to understand why the FBI thought that Raimondo and Garris had anything to do with al Qaeda, or what information about the men was derived from (possibly illegal) ‘foreign’ intelligence surveillance. It could be that, as Marcy Wheeler proposes, the bureau thought antiwar.com published the names of people on a government no-fly list because it was working in the service of Pakistan-based al-Qaeda — i.e. ‘working in the service of a foreign power’. 

But as the ACLU of NorCal observes, one of three major flawed factors that prompted the investigation into antiwar.com and its editors “is that “many individuals worldwide…including individuals who are currently under investigation” view the website, upon which the no-fly list was published. Presumably people around the world, “including individuals who are currently under [FBI] investigation” view all kinds of websites and news sources. Being part of a successful media outlet should not make a journalist suspicious and should not be the basis for government surveillance.”

It’s unclear whether or not the bold-typeface admonition at the beginning of the antiwar.com threat assessment was meant as a warning to agents not to disclose information derived from FISA in a possible criminal indictment against Pakistani-based al-Qaeda suspects, or whether they were talking about a possible prosecution of antiwar.com editors. 

Either way, the FBI memo makes clear that the US government has kept a tight lid on information derived from supposed FISA authorities for years. If the surveillance that led the FBI to the realization that some of their Pakistani al-Qaeda suspects were viewing antiwar.com was legal and above board, why the firm order not to disclose it absent authorization from the Attorney General? 

While we can’t be sure of its significance, the command makes me think that the government’s refusal to disclose information that could have been obtained illegally under FISA authorities didn’t start with the passage of the FISA Amendments Act in 2008.