John Carlin was an Assistant Attorney General – and Head of the Department of Justice’s National Security Division (NSD).
On September 27, 2016, Carlin announced his resignation. He formally left the NSD on October 15, 2016. Carlin had been named Acting Assistant Attorney General in March 2013 and was confirmed in the spring of 2014.
Carlin had previously served as chief of staff to then-FBI Director Robert S. Mueller.
Carlin announced his resignation exactly one day after he filed the Government’s proposed 2016 Section 702 certifications. His signature can be found on page 31.
This filing would be subject to intense criticism from the FISA Court following disclosures made by NSA Director Rogers. Significant changes to the handling of raw FISA data would result.
Section 702 is part of the broader FISA Act and permits the government to target for surveillance foreign persons located outside the United States for the purpose of acquiring foreign intelligence information.
Instead of issuing individual court orders, Section 702 requires the Attorney General and the Director of National Intelligence (DNI) to provide the Foreign Intelligence Surveillance Court (FISC) with annual certifications that specify categories of foreign intelligence information the government is authorized to acquire pursuant to Section 702.
The Attorney General and the Director of National Intelligence must also certify that Intelligence Community elements will follow targeting procedures and minimization procedures that are approved by the FISC as part of the annual certification.
The National Security Division and Office of the Director of National Intelligence (ODNI) are jointly required to routinely review all Intelligence Agency U.S. person queries of content to ensure the Section 702 queries satisfy the legal standard.
The NSD – with notice to the ODNI – is required to report any incidents of Agency noncompliance or misconduct to the FISA Court.
Again, John Carlin was Head of the NSD.
At the time Carlin’s sudden resignation went mostly unnoticed.
But there was more to the story.
Here is the official explanation as provided by the Office of the Director of National Intelligence:
After submitting its 2016 Certifications in September 2016, the Department of Justice and ODNI learned, in October 2016, about additional information related to previously reported compliance incidents and reported that additional information to the FISC. The NSA also self-reported the information to oversight bodies, as required by law. These compliance incidents related to the NSA’s inadvertent use of U.S. person identifiers to query NSA’s “upstream” Internet collection acquired pursuant to Section 702.
The FISA Court was more direct in a 99-page April 26, 2017 unsealed FISA Court Ruling.
On October 24, 2016, the government orally apprised the Court of significant non-compliance with the NSA’s minimization procedures involving queries of data acquired under Section 702 using U.S. person identifiers. The full scope of non-compliant querying practices had not been previously disclosed to the Court. Two days later, on the day the Court otherwise would have had to complete its review of the certifications and procedures, the government made a written submission regarding those compliance problems…and the Court held a hearing to address them.
Here’s what actually happened:
On January 7, 2016, the NSA Inspector General, George Ellard, released a report on NSA Controls & FISA compliance. Starting on page ii:
Agency controls for monitoring query compliance have not been completely developed.
The Agency has no process to reliably identify queries performed using selectors associated with 704 and 705(b) targets.
The rest of the highlights are fully redacted. But more information lay within the report (pages 6-7):
We identified another [redacted] queries that were performed outside the targeting authorization periods in E.O. 12333 data, which is prohibited by the E.O. 12333 minimization procedures. We also identified queries performed using USP selectors in FAA §702 upstream data, which is prohibited by the FAA §702 minimization procedures.
Material FISA Abuses were routinely taking place.
Following NSA Inspector General Ellard’s report, Rogers implemented a tightening of internal rules at the NSA. However, the NSA Inspector General’s report and Roger’s tightening of internal rules did not halt the Query Compliance Problems.
In March of 2016, NSA Director Rogers became aware of improper contractor access to raw FISA data (Page 83 of Court Ruling).
On April 18, 2016, Rogers shut down all outside contractor access to raw FISA information – specifically outside contractors working for the FBI. The March 2016 discovery that outside contractors were accessing raw FISA data is probably the event that precipitated Rogers ordering a full compliance review (Page 84 of Court Ruling).
On April 18, 2016, both the FBI and DOJ’s NSD become aware of Rogers’ compliance review. They may have known earlier but they were certainly aware after outside contractor access was halted.
On September 26, 2016, National Security Division Head John Carlin filed the Government’s proposed 2016 Section 702 certifications. Carlin knew the general status of Rogers’ compliance review. The NSD was part of the review.
Carlin failed to disclose the January 7, 2016 Inspector General Report and associated FISA Abuse to the FISA Court in his 2016 Certification. Carlin also failed to disclose Rogers’ ongoing Compliance Review.
On September 27, 2016, Carlin announced his resignation – which would become effective on October 15, 2016.
On October 4, 2016, a standard follow-up hearing on the 2016 Section 702 Certification was held (Page 19). Carlin was present at the hearing. Again, Carlin made no disclosure of FISA Abuse. This would be noted by the Court later (see below).
On October 15, 2016, Carlin formally left the NSD.
On October 20 2016, Rogers was briefed by the NSA compliance officer on findings from the 702 NSA compliance audit. The audit had uncovered numerous “About” Query violations (Senate testimony).
On October 21 2016, the DOJ & FBI sought and received a Title I FISA probable cause order authorizing electronic surveillance on Carter Page from the FISA Court. At this point, the FISA Court was still unaware of the Section 702 violations.
On October 24, 2016, Rogers verbally informed the FISA Court of his findings (Page 4 of Court Ruling).
The FISA Court was unaware of the FISA/Query violations until they were presented to the Court by NSA Director Rogers.
The NSD and ODNI perform the ongoing reviews of Intelligence Agency Section 702 use. It is simply not possible they were unaware of the NSA Inspector General’s Report.
The government knew Rogers was conducting his own compliance review. Rogers knew the government was finalizing its 2016 Certification.
The government was aware its 2016 Certification lacked material and legally required disclosure.
As noted by the Court on Page 14, the National Security Division specifically hid the findings of the January 7, 2016 Inspector General Report – along with knowledge of other violations – from the FISA Court:
The October 26, 2016 Notice disclosed that an NSA Inspector General (IG) review and report and NSA Office of Compliance for Operations (OCO) verification activities indicated that, with greater frequency than previously disclosed to the Court, NSA analysts had used U.S.-person identifiers to query the results of Internet “upstream” collection, even though NSA’s Section 702 minimization procedures prohibited such queries.
The FISA Court had been unaware of either the IG Report or Rogers’ Compliance Review prior to Rogers’ disclosure.
Again, the October 26, 2016 Notice is Director Rogers’ formal written presentation of his findings to the FISA Court.
At the October 26, 2016 hearing, the Court ascribed the government’s failure to disclose those IG and OCO reviews at the October 4, 2016 hearing to an institutional “lack of candor” on NSA’s part and emphasized that “this is a very serious Fourth Amendment issue.”
The October 4, 2016 hearing was a standard follow-up hearing resulting from Carlin’s September 26, 2016 submission. Carlin was present at this hearing. Carlin again failed to disclose either the IG or Rogers’ reviews.
By law, the results of the IG’s Report should have been immediately reported to the FISA Court by the NSD in January 2016.
The full IG Report – along with notification of Rogers’ ongoing review – should have been included in Carlin’s September 26, 2016 proposed Certification.
Carlin, the NSD and ODNI intentionally refused to disclose the FISA Abuses.
There is only one explanation that makes sense to me.
Carlin specifically didn’t disclose his knowledge of FISA Abuse in the annual Section 702 Certifications for one reason. Carlin wanted to avoid raising suspicions at the FISA Court ahead of the Carter Page FISA Warrant.
The FBI and DOJ’s NSD were quite literally racing against Rogers’ Investigation in order to obtain a FISA Warrant on Carter Page.
Meanwhile, Director of National Intelligence James Clapper submitted a recommendation that Director Rogers be removed as NSA Head.
The move to fire Rogers – which failed – originated sometime in mid-October 2016. Exactly when Director Rogers was preparing to present his findings to the FISA Court.
Here’s the Rogers timeline:
- November 2015-April 2016 – The FBI and DOJ’s National Security Division (NSD) uses private contractors to access raw FISA information using “To” and “From” FISA-702(16) & “About” FISA-702(17) queries.
- March 2016 – NSA Director Rogers becomes aware of improper access to raw FISA data.
- April 2016 – Rogers orders the NSA compliance officer to run a full audit on 702 NSA compliance.
- April 18 2016 – Rogers shuts down FBI/NSD contractor access to the FISA Search System.
- September 26 2016 – DOJ’s NSD Head John Carlin files the Government’s proposed 2016 Section 702 certifications. Carlin has been aware of Rogers’ compliance review.
- September 27 2016 – Carlin announces he is resigning. Mary McCord will later assume his position.
- October 4 2016 – a follow-up hearing on the 2016 Section 702 Certification was held. Carlin is still with the NSD at this time.
- October 15 2016 – Carlin formally leaves the NSD.
- Mid-October 2016 – DNI Clapper submits a recommendation to the White House that Director Rogers be removed from the NSA.
- October 20 2016 – Rogers is briefed by the NSA compliance officer on the Section 702 NSA compliance audit and “About” query violations.
- October 21 2016 – Rogers shuts down all “About Query” activity. Rogers reports the activity to DOJ and prepares to go before the FISA Court.
- October 21 2016 – DOJ & FBI seek and receive a Title I FISA probable cause order authorizing electronic surveillance on Carter Page from the FISC. At this point, the FISA Court is unaware of the Section 702 violations.
- October 24 2016 – Rogers verbally informs the FISA Court of Section 702(17) violations.
- October 26 2016 – Rogers formally informs the FISA Court of 702(17) violations in writing.
- November 17 2016 (morning) – Rogers travels to meet President-Elect Trump and his Transition Team in Trump Tower. Rogers does not inform DNI James Clapper.
- November 17 2016 (evening) – Trump Transition Team announces they are moving all transition activity to Trump National Golf Club in New Jersey.
The DOJ & FBI were fully aware that Rogers initiated a compliance review in April 2016. They were aware of the review’s relative status.
The DOJ & FBI were both aware of Carlin’s fraudulent September 26, 2016 submission of the Government’s proposed 2016 Section 702 certifications. They knew it contained material omissions.
The DOJ & FBI appear to have rushed the Carter Page FISA application – knowing Rogers was preparing to go before the FISA Court.
The DOJ & FBI applied for – and received – a Title I FISA warrant on Carter Page the same day Rogers apprised both Agencies of ongoing FISA violations.
Neither the DOJ or FBI informed the FISA Court of Rogers’ notification when they made their FISA Application on Page.
The FISA Warrant on Carter Page was granted on October 21, 2016.
And it likely wouldn’t have been possible without John Carlin.
For the complete story see, The Uncovering – Mike Rogers’ Investigation, Section 702 FISA Abuse & the FBI.