One year ago, the Justice Department’s National Security Division (NSD) announced the launch of a significant new national security oversight initiative to meet its increasing responsibilities in conducting oversight of the intelligence activities of the FBI and, as appropriate, other intelligence agencies.
Since the launch of the initiative, the Department has dramatically broadened the scope of its national security oversight role. In the past, the Department’s oversight efforts were primarily focused on overseeing the FBI’s use of authorities under the Foreign Intelligence Surveillance Act (FISA). Now, Justice Department attorneys, in conjunction with FBI attorneys, are examining all aspects of the FBI’s national security investigations for adherence to applicable laws, regulations, and guidelines. This initiative builds on prior Departmental improvements in national security oversight, including the September 2006 creation of the NSD itself.
One of the key components of this initiative is a new Oversight Section within the NSD’s Office of Intelligence that is specifically dedicated to ensuring that national security investigations comply with the nation’s laws, regulations and policies, including those designed to protect privacy interests and civil liberties. This section is fully staffed and operational. It is supervised by an experienced leadership team, which reports directly to the Deputy Assistant Attorney General for the Office of Intelligence within NSD.
“The National Security Division plays a vital role in ensuring that national security investigations are conducted properly and with respect for the civil liberties and privacy interests of Americans,” said Matt Olsen, Deputy Assistant Attorney General for the Office of Intelligence. “Our enhanced oversight efforts over the past year represent a solid foundation from which we will continue to build as we work with the FBI and other intelligence agencies to achieve this goal.”
Some of the oversight activities undertaken by the NSD in the past year, as well as those to be undertaken in the future, include:
Comprehensive National Security Reviews
Last year, the Department for the first time began conducting regular, comprehensive reviews of national security activities at FBI field offices around the country and at FBI Headquarters national security units.
These National Security Reviews, which started in April 2007, are staffed by career attorneys from the NSD and the FBI’s Office of General Counsel, and the findings are reviewed by officials from the Department’s Privacy and Civil Liberties Office.
These reviews examine, among other things, the FBI’s use of National Security Letters to ensure compliance with applicable laws, guidelines and policies. They also examine FBI national security investigation case files to ensure, among other things, that there is sufficient predication to support the investigations; that the cases are authorized by appropriate personnel; and that notices of the investigations are properly provided to the National Security Division.
During 2007, the Department conducted 15 National Security Reviews at FBI offices around the country, as well as at FBI headquarters. Thus far this year, the Department has completed another eight National Security Reviews, and plans to complete a total of 17 reviews by the end of 2008.
Earlier this year, the Justice Department’s Office of Inspector General (OIG) concluded that the Justice Department and FBI had made “significant progress” in improving oversight of the FBI’s use of National Security Letters since problems in the use of these letters were first reported by the OIG in March 2007. Among other oversight actions, the OIG noted the new National Security Reviews undertaken by the Department.
Oversight of the New FISA Amendments Act
With the recent enactment of the FISA Amendments Act of 2008, NSD’s Oversight Section is now charged with additional oversight responsibilities regarding the use of the new FISA provisions. The FISA Amendments Act provides for oversight both within the Executive Branch, including by Department of Justice and Intelligence Community Inspectors General, and by Congress and the FISA Court.
Specifically, the new law provides for targeting non-U.S. persons overseas to acquire foreign intelligence information, subject to specific targeting and minimization procedures that are reviewed by the FISA Court. The law requires the Attorney General and the Director of National Intelligence to assess compliance with those procedures every six months and to submit an assessment to the FISA Court and to Congress. The NSD’s Oversight Section will be responsible for preparing these compliance assessments.
The Oversight Section will also have responsibility for satisfying the Department’s new Congressional reporting requirements under the FISA Amendments Act. Those requirements include reporting every six months concerning the implementation of the FISA amendments as well as other FISA-authorized activities and significant judicial decisions regarding FISA.
Protect America Act Oversight
In August 2007, the President signed the Protect America Act of 2007, which amended FISA, and which ultimately expired in February 2008. The National Security Division shared in the responsibility for overseeing the implementation of the law, and, in so doing, helped to create a strong, internal oversight regime that exceeded the requirements of the statute.
For example, within 14 days of initiation of collection under the Protect America Act, the NSD, in conjunction with the Office of the Director of National Intelligence (ODNI), conducted a review of each agency’s use of such authorities. These reviews assessed the agencies’ compliance with the requirements of the Protect America Act, including the procedures by which the agencies ensured that surveillance activities were targeting persons reasonably believed to be located outside the United States.
The NSD and the ODNI have conducted more than 30 reviews to ensure continued compliance with the Protect America Act. As part of this effort, the NSD worked closely with other representatives from the intelligence community to ensure that Congress was briefed on the first and subsequent compliance reviews, as well as many other aspects involving implementation of the Protect America Act.
FISA Minimization and Accuracy Reviews
The Oversight Section also regularly conducts reviews in FBI field offices to ensure compliance with minimization requirements ordered by the FISA Court and to ensure the factual accuracy of applications submitted to the FISA Court.
Orders issued by the FISA Court direct the government to follow minimization procedures. These procedures are designed to minimize the acquisition, retention, and dissemination of information concerning U.S. persons.
Attorneys from the Oversight Section conduct minimization reviews to assess whether the results of FISA surveillance and searches have been minimized in accordance with applicable minimization procedures. The attorneys also conduct line-by-line accuracy reviews of selected applications presented to the FISA Court to ensure that the FBI possesses supporting documentation for the facts asserted in the application.
During 2007, the Oversight Section conducted 34 minimization reviews, up from 23 conducted in 2006. The Oversight Section also conducted 54 accuracy reviews in 2007, an increase of more than 30 percent from the prior year.
Reviews of Intelligence Oversight Board Referrals
As directed by the Attorney General in March 2007, the Oversight Section also reviews all referrals by the FBI to the President’s Intelligence Oversight Board (IOB). An FBI referral to the IOB generally arises from improper utilization of authorities under FISA; failure to adhere to Attorney General Guidelines or implementing FBI authority; or improper utilization of authorities involving national security letters.
The Oversight Section reviews these referrals to detect patterns of conduct that may require changes in policy, training, or oversight. Twice a year, the Oversight Section also reports to the Attorney General on such referrals and informs the Department's Chief Privacy and Civil Liberties Officer of any referrals that raise serious civil liberties or privacy issues.
Reviews of FBI National Security Undercover Operations
The National Security Division also reviews FBI undercover operations in the national security arena. Pursuant to statute, certain FBI undercover activities are subject to review and approval within the Department. The NSD plays an integral role in reviewing these activities prior to approval.