Tag Archives: FISA law

A Small Step Toward Justice

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Ed Morrissey at Hot Air is reporting today that there have been some small steps taken by the Foreign Intelligence Surveillance (FISA) Court to insure that the civil rights of Americans will not be violated as they were in the case of Carter Page.

The article reports:

Substantively, it might not seem like much, but symbolically, this order will sting the FBI and Department of Justice. The Foreign Intelligence Surveillance Court effectively barred any agents involved in the Carter Page FISA warrants from taking part in its proceedings as a consequence of the misconduct that took place in Operation Crossfire Hurricane. Also, the court will now require agents and attorneys to swear under oath explicitly that they have included all potentially exculpatory evidence in their presentations:

A secretive federal court on Wednesday effectively barred F.B.I. officials involved in the wiretapping of a former Trump campaign adviser from appearing before it in other cases at least temporarily, the latest fallout from an internal inquiry into the bureau’s surveillance of the aide.

A 19-page opinion and order by James E. Boasberg, the chief judge of the Foreign Intelligence Surveillance Court, also largely accepted changes the F.B.I. has said it will make to its process for seeking national-security wiretaps following a damning inspector general report about errors and omissions in applications to monitor the adviser, Carter Page.

But Judge Boasberg ordered law enforcement officials to specifically swear in future cases that the applications to the court contain “all information that might reasonably call into question the accuracy of the information or the reasonableness of any F.B.I. assessment in the application, or otherwise raise doubts about the requested findings.”

…The banishment of Crossfire Hurricane figures is almost certainly meant to be embarrassing, but that’s about as much teeth as FISC has in this situation. As the New York Times’ Charlie Savage points out, the court has limited authority to deal with FBI misconduct. It has no oversight over the Department of Justice at all, which is an executive-branch agency. Presumably the court’s rotating judges had already adopted a more skeptical approach to more recent surveillance warrant applications after reading the Michael Horowitz report, but unless Congress changes the FISA law, courts are still required to follow it.

Speaking of which, the law is due to expire, and Donald Trump has already declared he won’t sign an extension without significant changes. Given what happened in Crossfire Hurricane, few would be surprised to know that, of course:

Unless it it renewed, FISA sunsets on March 15th. There are recommendations on the table to reform the law. President Trump has stated that he will not sign an extension of the law without reforms. Considering how the law was illegally used against him and his campaign, I think that is a very reasonable approach.

Annoying Things Done By Politicians

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Representative Adam Schiff released the Democratic memo about FISA surveillance on Saturday (when he assumed no one would be paying attention). The memo is an effort to deflect charges that the Federal Bureau of Investigation (FBI) and the Department of Justice (DOJ) were weaponized for political purposes during and after the 2016 presidential campaign. The memo itself was a purely political move, and the release of the memo on a Saturday night was also a political move. The release of the memo is interesting bercause the memo does not help the Democrats’ case.

Yesterday Andrew McCarthy posted an article at National Review explaining that the memo does more damage to the Democrats’ arguments than helps them. Because of his extensive legal background, Andrew McCarthy is the perfect person to dissect this memo.

The article is detailed, and I suggest that you follow the link to read the entire article, but I will try to summarize it.

The article reports:

The memo concedes that the FISA-warrant application relied on allegations by Steele’s anonymous Russian hearsay sources that:

Page met separately while in Russia with Igor Sechin, a close associate of Vladimir Putin and executive chairman of Roseneft, Russia’s state-owned oil company, and Igor Divyekin, a senior Kremlin official. Sechin allegedly discussed the prospect of future U.S.-Russia energy cooperation and “an associated move to lift Ukraine-related western sanctions against Russia.” Divyekin allegedly disclosed to Page that the Kremlin possessed compromising information on Clinton (“kompromat”) and noted the possibility of its being released to Candidate #1’s [i.e., Donald Trump’s] campaign. . . . This closely tracks what other Russian contacts were informing another Trump foreign policy adviser, George Papadopoulos.

1) This was obviously the most critical allegation against Page. The Democrats attempt to make much of Page’s trip to Moscow in July 2016, but the uncorroborated Sechin and Divyekin meetings, which Page credibly denies, are the aspect of the Moscow trip that suggested a nefarious Trump–Russia conspiracy. That’s what the investigation was about. Far from clandestine, the rest of Page’s trip was well publicized and apparently anodyne.

2) Democrats implausibly insist that what “launched” the FBI’s counterintelligence investigation was not Steele’s allegations but intelligence from Australia about George Papadopoulos’s contact with what Democrats elusively describe as “individuals linked to Russia.”

…Even if we assume for argument’s sake that these characters had solid regime connections — rather than that they were boasting to impress the credulous young Papadopoulos — they were patently not in the same league as Sechin, a Putin crony, and Divyekin, a highly placed regime official. And that, manifestly, is how the FBI and the DOJ saw the matter: They sought a FISA warrant on Page, not Papadopoulos. And, as the above-excerpted passage shows, they highlighted the Steele dossier’s sensational allegations about Page and then feebly tried to corroborate those allegations with some Papadopoulos information, not the other way around. (More on that when we get to Schiff’s notion of “corroboration.”)

The article also notes:

…because Page was an American citizen, FISA law required that the FBI and the DOJ show not only that he was acting as an agent of a foreign power (Russia), but also that his “clandestine” activities on behalf of Russia were a likely violation of federal criminal law. (See FISA, Section 1801(b)(2)(A) through (E), Title 50, U.S. Code.) It is the Steele dossier that alleges Page was engaged in arguably criminal activity. The Democrats point to nothing else that does.

Because of the way this whole story has been reported, I am not sure many Americans realize that the constitutional rights of one of their fellow citizens were violated by the FISA Court. All of us need to remember that this could happen to any one of us. We also need to note that if the use of the FBI and DOJ for political purposes is not dealt with and the guilty parties punished, we will see more of this behavior in the future.

The article continues:

How’s this for transparency? The FISA warrant application says that Steele, referred to as “Source #1,” was “approached by” Fusion GPS founder Glenn Simpson, referred to as “an identified U.S. person,” who

indicated to Source #1 that a U.S.-based law firm had hired the identified U.S. Person to conduct research regarding Candidate #1’s [i.e., Trump’s] ties to Russia. (The identified U.S. Person and Source #1 have a longstanding business relationship.) The identified U.S. Person hired Source #1 to conduct this research. The identified U.S. Person never advised Source #1 as to the motivation behind the research into Candidate #1’s ties to Russia. The FBI speculates that the identified U.S. Person was likely looking for information that could be used to discredit Candidate #1’s campaign. [Emphasis in Schiff memo, p. 5]

The first thing to notice here is the epistemological contortions by which the DOJ rationalized concealing that the Clinton campaign and the DNC paid for Steele’s reporting. They ooze consciousness of guilt. If you have to go through these kinds of mental gymnastics to avoid disclosing something, it’s because you know that being “transparent” demands disclosing it.

As I stated, it is a very long and detailed article. Please follow the link above to see the other problems with the Schiff memo.