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, 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 DNI must also certify that Intelligence Community agencies will follow targeting procedures and minimization procedures that are approved by the FISC as part of the certification.
On Sept. 26, 2016, NSD head John Carlin filed the government’s proposed 2016 Section 702 certifications. Carlin knew the general status of Rogers’s compliance review. The NSD was part of the review.
In his filing, Carlin failed to disclose a Jan. 7, 2016, inspector general report that was highly critical of agency controls for monitoring query compliance. Carlin also failed to disclose the FBI’s use of private contractors and Rogers’s ongoing compliance review.
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.”