FISA Information in the Manning Trial

I wish to highlight for the public record an instance of Foreign Intelligence Surveillance Act (FISA) information in Chelsea Manning's court-martial, which is also part of the U.S. Government's intelligence and criminal investigations into WikiLeaks.

What remains unclear, as national security commentator Marcy Wheeler put it to me, is whether the FISA information is probable cause content targeted at a U.S. person (Title I and Title III) or another tool (Section 215 or Pen Register/Trap and Trace Provisions).

In the summer of 2012, military prosecutors asked the judge for a 43 day extension to disclose material, which they described as including FISA information.

Unclear Production Standard

The language concerning which legal standard military prosecutors were producing the FISA information is sufficiently confusing.

Military prosecutors seem to have argued that the FISA information in question was not included in the judge's earlier ruling to produce information to defense regarding Manning (and WikiLeaks), which involved investigations, damage assessments, or mitigation measures from military and "aligned" agencies (Justice, FBI, Diplomatic Security Services, Office of the Director of National Intelligence, Office of the Counterintelligence Executive, CIA, etc.).

However, they contradict themselves by also arguing that the FISA material would fall under the purview of the judge's same ruling.

The standard under which military prosecutors appear to described their production obligations of the FISA information was Brady and Williams. In other words, military prosecutors were required to seek out and review records related to Manning (and WikiLeaks) in the possession of military and government agencies even if a specific request by defense was absent (Williams). They were then required to provide (to defense) any exculpatory or mitigating evidence (Brady).

These kinds of details are important for someone like me trying to understand the nature of the material in question, which is obviously not published in the unclassified record of trial.

I will add for the sake of clarity, since the legal standard is unclear, that military prosecutors were also required to turn over any evidence to defense, which the prosecution intended to use at trial (as required by law); and further, as ordered by the judge in June 2012.

FISA Information

Military prosecutors first described the FISA information as above secret or sensitive, compartmented material from the Department of Homeland Security, CIA, and the Office of the National Director of Intelligence. They did not call it FISA material.

Only when made to justify their extension, did military prosecutors state that some of the above secret and/or sensitive, compartmented material included FISA information, adding:

"DHS and ODNI are not collectors of information. ODNI operates to effectively integrate foreign, military, and domestic intelligence "they are customers of information...DHS and ODNI rely on intelligence collected by the CIA and National Secuirty Agency, among others, and incorporate the intelligence collected by those organizations into their own products."

Military prosecutors further specifically state regarding the FISA information in question:

"The Attorney General of the United States must approve in advance the disclosure of any FISA material...The prosecution has yet to disclose FISA information in this case and should any FISA information be discoverable, will have to coordinate through the Department of Justice for approval to disclose to the defense."

FISA material according to Department of Defense Directive 5200.01-V2 is control marked TOP SECRET/NO FOREIGN/FISA. The marking sponsor or original classification authority for FISA material according to the CAPCO manual is the Director of National Intelligence.

Interestingly, a 2013 audit of the Department of Justice's compliance with the classification system by the Inspector General found that the National Security Division, which processes applications for FISA warrants, systematically mismarks and/or misclassifies FISA applications and related material. The report states:

"[T]his practice could result in classifiers believing that they could establish the classification levels, dissemination controls, or declassification dates of their choosing rather than the ones previously established by the actual original classification decision."

In terms of the FISA information in the Manning court-martial, we could assume that it was subsequently handed over to the court and defense, because a month later, lead military prosecutor Major Fein stated in court:

"Your Honor, both--or all three, ODNI, Department of Homeland Security, and the CIA are working to meet the Court's suspense. The government does not anticipate any issues meeting the 14 September suspense."

September 14, 2012 was the date requested by the prosecution and granted by the judge for the FISA information extension.

It remains an open thread, however, which I will continue to pull on.

Alexa O'Brien Alexa O'Brien researches and writes about national security and law enforcement. Her work has been published in The New York Times, VICE News, The Cairo Review of Global Affairs, Guardian (UK), The Daily Beast, NY Daily News, and featured on the BBC, PBS, NPR, Democracy Now!, and Public Radio International. She was shortlisted for the 2013 Martha Gellhorn Prize for Journalism in the United Kingdom and listed in The Verge 50. In 2016, she worked at The Constitution Project in Washington, D.C. as a staff researcher and writer on an independent commission studying Oklahoma's death penalty. She also provided research support to scholars of the first cost study conducted on that state's capital punishment system.