Carlin filed the government’s proposed 2016 Section 702 certifications on Sept. 26, 2016. Carlin knew the general status of the compliance review by Rogers. The NSD was part of the review. Carlin failed to disclose a critical Jan. 7, 2016, report by the NSA inspector general and associated FISA abuse to the FISA court in his 2016 certification. Carlin also failed to disclose Rogers’s ongoing Section 702-compliance review.
On Sept. 27, 2016, the day after he filed the annual certifications, Carlin announced his resignation, which would become effective on Oct. 15, 2016.
On Oct. 4, 2016, a standard follow-up court hearing was held (Page 19), with Carlin present. Again, he made no disclosure of FISA abuse or other related issues. This lack of disclosure would be noted by the court later in the April 2017 ruling:
“The government’s failure to disclose those IG and OCO reviews at the October 4, 2016 hearing [was ascribed] to an institutional ‘lack of candor.’”
On Oct. 15, 2016, Carlin formally left the NSD.
On Oct. 20, 2016, Rogers was briefed by the NSA compliance officer on findings from the 702 NSA compliance audit. The audit had uncovered a large number of issues, including numerous “about query” violations (Senate testimony).
Rogers shut down all “about query” activity on Oct. 21, 2016. “About queries” are particularly worrisome, since they occur when the target is neither the sender nor the recipient of the collected communication; rather, the target’s “query,” such as an email address, is being passed between two other communicants.
On the same day, the DOJ and FBI sought and received a Title I FISA warrant on Trump campaign adviser Carter Page. At this point, the FISA court still was unaware of the Section 702 violations.
amounted to a surreptitious race between then-NSA Director Adm. Mike Rogers and DOJ National Security Division (NSD) head John Carlin.
Following a March 9, 2016, discovery that outside contractors for the FBI had been accessing raw FISA data since at least 2015, Rogers directed the NSA’s Office of Compliance to conduct a “fundamental baseline review of compliance associated with 702” at some point in early April 2016 (Senate testimony & pages 83–84 of court ruling).
On April 18, 2016, Rogers moved aggressively in response to the disclosures. He abruptly shut down all FBI outside-contractor access. At this point, both the FBI and the DOJ’s NSD became aware of Rogers’s compliance review. They may have known earlier, but they were certainly aware after outside-contractor access was halted.
The DOJ’s NSD maintains oversight of the intelligence agencies’ use of Section 702 authority. The NSD and the Office of the Director of National Intelligence (ODNI) jointly conduct reviews of the intelligence agencies’ Section 702 activities every 60 days. The NSD—with notice to the ODNI—is required to report any incidents of agency noncompliance or misconduct to the FISA court.
Instead of issuing individual court orders, the attorney general and the director of national intelligence (DNI) are required by Section 702 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 DNI also must certify that Intelligence Community agencies will follow targeting procedures and minimization procedures that are approved by the FISC as part of the certification.