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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.
A potential fix for the current matter: amend the statute to require a FISA application include the origination of the document with signed transmission confirmation, and further require confirmation of that transmission by the FISA court. So, if a document originates from an intelligence service, its transmission to the DOJ/FBI is confirmed by an official from that service and can be later confirmed by the FISA court judge.
In other words, you’ll have a slightly bigger paper trail and more people putting their rear ends on the line/more people required to participate in willful abuse of the system. This, I think, is a minimal addition of bureaucracy, but greatly increases the difficulty of abuse…in theory, anyway.
“Document originated from a private consulting firm acting under contract with a law firm hired by the DNC and Clinton Campaign.” I think that might produce a red flag. I sure hope it would.
If you apply to renew a warrant, wouldn’t you just be adding to the original request, so that every subsequent renewal would include the original evidence for the first request, plus proof of progress? That is at least how I would imagine it to work. So then including the Dossier info in subsequent renewals would be expected maybe necessary. Maybe I am wrong.
Something though strikes me as odd. If Gowedy is the one who actually has seen the warrant applications, why didn’t he write the memo?
Steyn’s take:
https://www.steynonline.com/8431/un-candid-in-camera
From the NYT: “Under the law, FISA orders targeting Americans are good for 90 days, but extensions ‘may be granted on the same basis as an original order.’ The application, however, must consist of newly produced findings that the standards are met rather than merely recycling the previously signed documents.”
I would assume the original order would be available since they never seem to get the same judge twice.
And today’s Seattle Times editorial is entitled “Don’t be fooled by reckless attempt to discredit FBI”.
Is their slogan, “Unfair amp day inaccurate.”
I would be curious how many times that FISA warrants get turned down. I suspect they don’t very much and that the FISA court is basically a placebo to make the plebs feel good and maybe a check so that it does not get used against those in power. I suspect that getting a FISA warrant against HRC would be impossible. I have noticed that of all the years of Clinton corrupt and all the investigations into their wrong doing that you have never heard anything about a FISA request against them.
FJ / JG,
Very interesting question. Bubba was famous for his seedy deals with the Chinese during his Presidency. The Clinton Global Slush Fund was an advertisement for Clinton Global Collusion with foreign powers who had the cash to pay for it.
Regards,
Jim
The raw numbers are one of the few things that court actually provides to Congress.
In the first 21 years of the court (1979-99) there was a 100% approval rate for over 12,000 applications with a modest 4 requests being modified.
After 9/11 and with the introduction of the Patriot Act requests spiked but so did the requests for modification. During the Bush years about 3% of all requests had to be modified before the court would approve them.
The court is sensitive to the rubber stamp charge. Back when the Democrats openly questioned the process, then-Presiding Judge Reggie Walton wrote to Sen. Patrick Leahy in 2014:
Still you have to ask how successful the program is. When prosecutors file charges based on information obtained by the FISA process they have to inform the court where the charges are filed. According to Reuters between 2006-13 it was cited in 27 cases of conspiracies to commit terrorism. (Including the Ft. Hood shooter Nidal Hassan, who they did not stop.) There were 14,000+ applications during that time period.
The FISA process is only as good as the character of the people involved just like almost everything else in our government. When connections and SAT scores replace integrity we are all in deep doodoo regardless of the structure of the law or the nature of the processes.
JV team maybe?
The three branches of government no longer act as checks and balances, they operate as a cabal. This is why we need a return to making the 9th and 10th Amendments much more powerful and repeal the 17th Amendment. But that will only happen if the governors assert their power in the same way that Justice Marshall did in Marbury v. Madison. That is, the various governors must find a few laws that go too far and declare them unconstitutional and thus won’t be followed, and accompany it with a statement that when a law is clearly counter to the Constitution, then no court or federal officer has the lawful power to enforce it.
Nothing else will work. The federal cabal of the branches of government have no incentives at all to limit federal power, and they don’t.
Isn’t this how we get sanctuary cities and States?
Is it constitutional for the federal government to make laws regarding immigration? Yes.
I’m referring to matters that are unconstitutional. Frankly, that includes a lot of things but not immigration.