The FISA Warrant Process F/Tapping An American Politician Speaking W/Foreign Nationals (Eichenwald)
Last night Rachel Maddow did a brief discussion about how the IC gets permission to listen in on an American's conversation. Kurt Eichenwald went into depth a few weeks ago in Newsweek. It is a lengthy process involving several layers of command okaying the collection, listening and storing of information. It isn't something that can be done on a whim by one person despite what Trump tweeted this morning.
Eichenwald begins by explaining what "an American person" means in IC terms. Prior to 9/11 if the NSA was following a known terrorist on their cell phone and that person entered America while talking they had to stop listening. If the terrorist mentioned an American corporation, they could not mention that corporation in their analysis. This changed after the WTC attacks in 2001 with more revisions after Snowden revealed some details about the surveillance system.
All that said.... "for someone like Flynn to get swept up in the surveillance and analysis system requires that the counterintelligence experts in government clear some very high hurdles".
The first rule comes from Executive Order 12333, signed by former President Ronald Reagan in 1981, which gives the FBI and the NSA the authority to use the Foreign Intelligence Surveillance Act as the basis for actively monitoring communications between foreign officials inside the United States, including ambassadors like Kislyak. In fact, the most surprising element of this entire scandal is that, barring absolute incompetence, Flynn must have known—and Kislyak certainly knew—that their conversations would probably be recorded.
This is not a matter of some simple “listen to it and analyze” process. The amount of data coming into the NSA alone on a daily basis is almost beyond human comprehension. The agency is something of a data factory, chopping, slicing and dicing all information coming in following a series of complex procedures. A program called Xkeyscore processes all intercepted signals before they then move on to another area that deals with particular specialized issues.
The rules for handling an intercept of a conversation between an official of the American government and the target of surveillance differ in some substantial ways from those used for average citizens. The recording would be deemed “raw FISA-acquired material,’’ some of the NSA’s most highly classified information. Then that recording or a transcript of it would be read into one of the four surveillance programs codenamed RAGTIME. There are RAGTIME-A, -B, -C, and -P. Most likely, according to one former government official with ties to the intelligence community, the conversation would have been analyzed through RAGTIME-B, which relates to communications from a foreign territory into the United States (the Russian embassy is considered sovereign land of that country). The conversation could not have fallen under RAGTIME-A, because that involves only foreign-to-foreign communications. RAGTIME-C deals with anti-proliferation matters and RAGTIME-P is for counterterrorism. (This is the infamous warrantless wiretapping program, with “P” standing for the post-9/11 law, the Patriot Act.)
Assuming the Flynn recording involved RAGTIME-B, because of his position as a former director of the Defense Intelligence Agency and being the incoming president’s national security advisor, the intercepted material would be immediately analyzed. If Flynn—as the White House first stated when the news of his contacts with Kislyak became public—had been engaged in pleasantries or planning meeting times for the Russians with Trump, the records of Flynn’s side of the conversation would no longer exist. Flynn would have been deemed an American person, and the intercepted recordings and transcripts would be “minimized”—the word used in the surveillance world for when portions or all of an intercepted communication is destroyed. In other words, if the conversation was no more than “How are you Ambassador Kislyak,” or “Let’s set up a meeting for you and a Russian delegation with the president-elect,” Flynn’s words would no longer exist in any American file.
But that’s not what happened. Instead, something in the recording led the first-level analysts from RAGTIME to follow the next leg of the procedure and take the intercept to the head of the FBI’s National Security Division for another review. Again, if a conclusion was reached that there was nothing in the call to raise concerns, the reviews would have stopped there and the data would have been minimized. But the division head instead decided that the intercepted conversation merited bringing the raw transcript to James Comey, the director of the FBI, and his deputy. (At the time, this would have been Mark F. Giuliano, a veteran of the bureau. Giuliano has since retired and, as of this month, was replaced by Andrew G. McCabe, a former lawyer in private practice who joined the federal law enforcement agency in 1996.) The director and his deputy were then the final arbiters of whether the intercepted communications merited further investigation. And they decided it did.
There were three communications intercepted........
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http://www.newsweek.com/why-flynn-russia-affair-troubling-trump-559132
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