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There Is No Such Thing as Checks and Balances
Sunday morning on the CBS program Face the Nation, Rep. Trey Gowdy had the following exchange with host Margaret Brennan:
BRENNAN: Now, we should dig into this. Because you are, from my understanding, the only Republican investigator on the House Intelligence Committee who actually viewed the FISA applications. Everything that went into essentially putting together this memo. So, when you’re talking about this Steele memo, you are not saying that it was the sole piece of evidence used to justify these four authorizations of the surveillance warrant. Are you?
GOWDY: No. It was not the exclusive information relied upon by– by the FISA court.
BRENNAN: Would it have been authorized were it not for that dossier?
GOWDY: No. It would not have been.
BRENNAN: How can you say that? Because it was authorized four times by separate judges.
GOWDY: Right. And the information was in there all four times. And the judge doesn’t do independent research. There are three Republicans that have seen every bit of information. Three of us: Bob Goodlatte, the chairman of the Judiciary; Johnny Ratcliffe, who’s a former terrorism prosecutor and U.S. attorney in Texas, and me. All three of us have total confidence in the FBI and DOJ to be able to do the jobs that they have been assigned. We have confidence in Bob Mueller, and we have serious consideration– serious concerns about this process. So, we have all three of those things in common, including being concerned about what — what happened in 2016.
Let’s forget about “The Memo,” “The Dossier,” Trump, Mueller and whatever else is boiling the political pot for just a second. When Congress recently reauthorized Section 702 of the Foreign Intelligence Surveillance Act (which President Trump signed) exactly how many of them actually have the security clearance and the authority to make sure the Federal Government is not violating the rights of the citizenry?
Supposedly Congress has its “Gang of Eight” that is authorized on highly sensitive intelligence matters:
United States House Permanent Select Committee on Intelligence
Devin Nunes (Chair) and Adam Schiff (Ranking member)
United States Senate Select Committee on Intelligence
Richard Burr (Chair) and Mark Warner (Vice Chairman)
Leadership in the House
Speaker Paul Ryan and Minority Leader Nancy Pelosi
Leadership in the Senate
Majority Leader Mitch McConnell and Minority Leader Chuck Schumer
Based on the above conversation between Gowdy and Brennan we now know that we have at least 11 members of the 535 total in the current Congress authorized to provide real oversight. Among those 11 there is little known coordination — either in thought or duty. And to top it off at least one of those listed is increasingly showing signs of dementia in their public appearances. (As an aside, 21 members of the House are older than 72, while 22 — almost one-fourth of the Senate — are older than the Atomic Bomb.)
Section 702 authorizes warrantless searches of foreign nationals. Still, American citizens get swept up. But too few in Congress are authorized to look and even fewer have the desire and just about all of them can be made to roll over in the name of security. No whistleblowing here.
When you do get into the safeguards of a judge-issued warrant, such as that discussed in the Nunes Memo, there are just as many disturbing omissions on the behalf of the Congress. In this case in particular, Gowdy does not list Chairman Nunes as one of those who has seen the complete FISA application. So, on the Republican side that eliminates the entire House side of the Gang of Eight.
Furthermore, there are not even any safeguards built in on the judicial side. If Gowdy is correct, the Steele Dossier was included in four separate applications before four different FISA judges. With no continuity from the bench, there’s no oversight that the warrants are producing results and not turning into protracted political fishing expeditions. If any of the previously authorized surveillance periods had actually produced anything the FBI would not have been forced to return to the Steele Dossier again and again. And if they had the oversight of a single judge they probably would have never made it to a fourth application.
Finally, as a sign that the DOJ and the FBI are indeed in the need of a good scrubbing, consider this: The FISA Courts were established in 1979 and since then they have only rejected 21 full applications out of a total of 40,117 requests. Of those 21, nine of them came in the final year of the Obama Administration and during the 2016 Presidential Election.
Few are really watching the watchers. And with Gowdy’s impending retirement those numbers are dropping, too.
Gee, thanks, EJ! Now I’m more depressed than ever. I noticed Gowdy didn’t mention Nunes, too; maybe he considered that to be obvious. I’m beginning to feel like the inmates are running the asylum–or maybe no one is. Good post!
All points well taken. The FISA process now appears to be unnecessarily and overly reliant on the integrity of those applying for the warrant. This is the most egregious abuse, and, unfortunately, sometimes that’s what it takes to shine a light. A day late and a dollar short, but I’m guessing (and hoping) the judges are more skeptical in the future.
BTW, did Brennan actually read the memo before pressing Gowdy with that boneheaded “How can you say that?”
My FBI agent daughter is also a lawyer and I will see her in two weeks. I have avoided talking to her about politics because she is pretty much a lefty but is too professional to get into hijinks like this. I did ask her in September 2016 about the election and she told me she would NOT vote for Hillary. I was surprised.
She is also an attorney and was tasked with preparing FISA applicants for a while about ten years ago. I’m going to ask her abut all this when I see her.
At that point, they weren’t talking the memo but the full FISA warrant on Carter Page. And she had better not had access to it.
I heard Nunes state himself categorically that he hadn’t viewed the applications personally. He said Trey Gowdy was the man with the expertise to do that.
And…as always @ejhill brings his own unique and pertinent perspective.
OK.
I read her question as going to whether the warrant would have been issued absent the dossier. That issue is dealt with in the memo itself in Andrew McCabe’s statement.
I think the FBI needs to be eliminated totally. Start over.
I’m wondering the same about the Navy, given the surface fleet performance lately.
EJ, this is one of the best pieces I have read about the whole FISA mess. I was reminded today about how Ken Star caught the Clintons with over 400 FBI files of Reagan and Bush staffers in the White House in 1991. There has been criminals in the FBI for a look time. No one to my knowledge ever got to the bottom of those 400 unauthorized files. If they had perhaps we would not be in this mess now.
Trey Howdy retiring…what is a good use for him outside of Congress. This seems like a loss for the cause of sanity, balance and integrity.
Am I wrong on that?
I heard Nunes say that he delegated Gowdy to read the FISA applications and report back to the committee.
Yeah, the ‘deal’ they made with the FBI to be able to see it specified that only one person could see it. So Nunes sent Gowdy as the best able to evaluate it. But with restrictions like that, so much for oversight.
By golly, it might come to that. Not only for the FBI, but the ATF, EPA, DOJ, CDC, DOEd, DOI . . . who knows how long the list come become?
Oh my goodness…
No. How about our next Director of the FBI? Wray may not be there long.
I am hoping he makes a great addition in the federal court system.
I’d like to know if the British did any spying on the Trump campaign on behalf of the Obama administration. And as other have written, we need to know a lot more about who was unmasked and why.
I kind of like that idea.
Or a FISA judge?
So is Gowdy really part of the swamp?
Yeah, but people are tying themselves up in logic pretzels trying to claim that just because he wouldn’t have sought a FISA warrant, one wouldn’t have been granted by telepathy.
I hope DOJ. We need prosecutors who are willing to act on the information being dug up and who won’t stall when the House oversight committee requests pertinent information to an investigation.
Gowdy has said he doesn’t want to be a judge. He wants to litigate.
And I don’t think we wants an administrative position either.
But if he took over as AG, he would be running what might be the biggest case ever.
EJ,
That’s one hell of a batting average for the Obama Administration. Does anyone wonder why they’d include the Steele Dossier when they knew it was a total fraud? The FISA Court wasn’t rolling over for their partisan garbage. They decided to go for broke.
Thanks, EJ. Nothing like a little light on the subject.
Regards,
Jim
Believe me, there’s nothing bad about their batting average.
During calendar year 2016 the Obama Administration made 1,752 applications to the FISA Court. 1,378 requests were granted in full, 339 requests were granted after modification and the 9 were rejected fully. That’s still a 99.5% success rate.
Fans of the DOJ will tell you that they’re just that good. In their minds they go the extra mile to make sure that every duck in the row aligns properly and every “t” is crossed and every “i” is dotted. Maybe. But like a Grand Jury these are not adversarial proceedings. Nobody but the applicant has the judge’s ear.
Still, based on the year and the unusually high number of rejections, who wouldn’t want to know the targets of those 9 rejections? (I mean, besides the press who show a remarkable amount of incuriousity on this whole subject.)
Good news. He just seems too good to loose, wherever he lands.
The FISA court has approved warrants to implement surveillance on 1,752 American Citizens…that’s what that number means, right.
I’d need the Law Talk boys to chime in on that. I would assume that to tap any domestic telephone number or email account they would need a warrant, regardless if the targets were citizens or foreign nationals.
Regardless, I’m thinking that he may have been tapped as Rosenstein’s replacement.