Where is the Outrage of Federal Judges on the FISA Court?

 

Lying to a Court is the ne plus ultra of contempt of court. It is defined as follows:

“(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice; (2) Misbehavior of any of its officers in their official transactions; (3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.”

I say, as I must as a member of the Bar, with all due respect, based on my (extensive) experience with Judges in many different Courts, and a great number of them were Federal Judges, the silence of the Judges on the FISA Court who, we now know beyond any reasonable doubt, were lied to must be the kindest and most gentle in the entire system.

Perhaps one could make the argument that the Judges I dealt with were unnecessarily harsh and rule-bound, but most, if not all, of them would have long ago held every lawyer who signed those applications to — gasp! dare I say it?– spy on Carter Page and the Trump campaign in contempt of court.

The reason was that their conduct was, in plain terms, contemptible!

I have been planning to put my concerns about this out there for a long time; every time I start to post them I decide to wait a few days for the “inevitable” contempt order.

Alas, no such order has issued — at least, not publicly.

Do you find their silence as strange as I do?

Sincerely, Jim

Published in Law
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There are 33 comments.

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  1. Old Bathos Member

    I wonder what the long-term effect of only hearing from one side in each case has on FISA judges. Corrupting or does it make them more inclined to scrutinize. Apparently not the latter.

    • #1
    • May 22, 2019, at 8:37 AM PDT
    • 4 likes
  2. Mark Camp Member

    Jim George: Do you find their silence as strange as I do?

    I do now. (Til I read your note, I lacked the knowledge to know that it was unusual).

    • #2
    • May 22, 2019, at 8:44 AM PDT
    • 4 likes
  3. Locke On Member

    It’s time to do away with the FISA courts and the surveillance powers that made them necessary. We’re getting an ample demonstration that the concerns of civil libertarians, that the FISA courts would be rapidly co-opted by the agencies they were supposed to control, were dead on target. The Land of the Free doesn’t need a Star Chamber.

    • #3
    • May 22, 2019, at 8:50 AM PDT
    • 11 likes
  4. Columbo Member

    Maybe … all of this impeachment talk … should be directed to these silent sitting FISA judges?

    • #4
    • May 22, 2019, at 8:53 AM PDT
    • 7 likes
  5. Mark Camp Member

    Locke On (View Comment):

    It’s time to do away with the FISA courts and the surveillance powers that made them necessary. We’re getting an ample demonstration that the concerns of civil libertarians, that the FISA courts would be rapidly co-opted by the agencies they were supposed to control, were dead on target. The Land of the Free doesn’t need a Star Chamber.

    I’m starting to think you are right.

    When I assumed that we could trust Federal Judges, I thought these courts might be a necessary compromise, as a law enforcement tool.

    When I saw the process fail in this case, I assumed it was due to prosecutorial misconduct; I still thought the Judges were honest.

    With Jim’s note, I now am doubting that. We don’t have an answer to his question, but if it is not corrupted or intimidated Judges, then what is the reason for their failure to bring contempt charges? Jim didn’t offer any possible alternatives. I lack the expertise to come up with normal reasons for it.

    • #5
    • May 22, 2019, at 9:06 AM PDT
    • 5 likes
  6. The Reticulator Member

    Locke On (View Comment):

    It’s time to do away with the FISA courts and the surveillance powers that made them necessary. We’re getting an ample demonstration that the concerns of civil libertarians, that the FISA courts would be rapidly co-opted by the agencies they were supposed to control, were dead on target. The Land of the Free doesn’t need a Star Chamber.

    Back at the time they were proposed, I thought there should at least be some system for ex post facto review of the decisions. I could see the need for speed in case of large, fast-moving threats to national security. But the proponents rejected even that much. It made me suspicious of the whole agenda.

    • #6
    • May 22, 2019, at 9:27 AM PDT
    • 8 likes
  7. The Reticulator Member

    The Reticulator (View Comment):

    Locke On (View Comment):

    It’s time to do away with the FISA courts and the surveillance powers that made them necessary. We’re getting an ample demonstration that the concerns of civil libertarians, that the FISA courts would be rapidly co-opted by the agencies they were supposed to control, were dead on target. The Land of the Free doesn’t need a Star Chamber.

    Back at the time they were proposed, I thought there should at least be some system for ex post facto review of the decisions. I could see the need for speed in case of large, fast-moving threats to national security. But the proponents rejected even that much. It made me suspicious of the whole agenda.

    This probably isn’t quite an accurate memory on my part. I was thinking of changes that came about with the Patriot Acts. I’ve recently read that the FISA courts, at least in some form, pre-dated that.

    • #7
    • May 22, 2019, at 9:35 AM PDT
    • 1 like
  8. WillowSpring Member

    Locke On (View Comment):

    It’s time to do away with the FISA courts and the surveillance powers that made them necessary. We’re getting an ample demonstration that the concerns of civil libertarians, that the FISA courts would be rapidly co-opted by the agencies they were supposed to control, were dead on target. The Land of the Free doesn’t need a Star Chamber.

    If you read through the Congressional testimony that has been released by Doug Collins (available at https://theconservativetreehouse.com/along with some analysis), it is clear that the “Woods Procedures” which were put in place to make sure that the FISA requests were reliable and accurate are not worth anything without honest and honorable people in the process.

    Answers to questions range include “I trusted the people who wrote it, so I signed off on it”, “My boss signed it, so I did” and “I read the first couple of pages and signed it” No one is taking seriously the violation of an American citizen’s rights.

    In addition to the FISA judges, I think Chief Justice Roberts has a lot to answer for, since he appoints the judges and should be overseeing them.

     

    • #8
    • May 22, 2019, at 9:37 AM PDT
    • 9 likes
  9. PHenry Member

    The bottom line here is that we can not, and must not, ‘trust’ the justice department and judicial system not to abuse powers granted them.

    Power corrupts. Give an inch…

    • #9
    • May 22, 2019, at 9:57 AM PDT
    • 6 likes
  10. Susan Quinn Contributor

    Wasn’t there some indication that one of the FISA judges was friends with one of the FBI folks? Was it Strzok? I don’t necessarily believe in guilt by association, but I’m hoping they look into this possibility.

    • #10
    • May 22, 2019, at 9:58 AM PDT
    • 3 likes
  11. Jim George Member
    Jim George Post author

    Susan Quinn (View Comment):

    Wasn’t there some indication that one of the FISA judges was friends with one of the FBI folks? Was it Strzok? I don’t necessarily believe in guilt by association, but I’m hoping they look into this possibility.

    In one of their seemingly millions of text messages back and forth (when did they ever get any actual work done?) he and Lisa Page talked about their friend “Rudy” being named to the FISA Court; I think it was Stzrok who said he had either seen him at a party or was going to see him at some time in the future and congratulate him on his appointment. 

    • #11
    • May 22, 2019, at 10:21 AM PDT
    • 3 likes
  12. Columbo Member

    Susan Quinn (View Comment):

    Wasn’t there some indication that one of the FISA judges was friends with one of the FBI folks? Was it Strzok? I don’t necessarily believe in guilt by association, but I’m hoping they look into this possibility.

    Indeed! Good memory @susanquinn! First name basis. ‘Rudy is on the FISC!’, Page texted Strzok …

    Also, good reading from the historical archives about the media collusion … Media Leak Strategy at FBI, [in]Justice …

    This was supposedly our tight-lipped ‘intelligence’ community. Uh huh.

    • #12
    • May 22, 2019, at 10:22 AM PDT
    • 4 likes
  13. Mark Camp Member

    PHenry (View Comment):

    The bottom line here is that we can not, and must not, ‘trust’ the justice department and judicial system not to abuse powers granted them.

    Power corrupts. Give an inch…

    Yeah, I hope the justice department brings these two institutions before the judicial system for justice.

    • #13
    • May 22, 2019, at 10:29 AM PDT
    • 1 like
  14. GFHandle Member

    PHenry (View Comment):
    The bottom line here is that we can not, and must not, ‘trust’ the justice department and judicial system not to abuse powers granted them.

    Absolutely. The Founders understood this obvious truth and set up checks and balances. Whenever we deviate and pretend that “men are angels,” we suffer for it. That, too, is the flaw with socialism. It assumes a class of angels who can plan an economy so as to produce wealth and justice.

    • #14
    • May 22, 2019, at 10:53 AM PDT
    • 5 likes
  15. Jim George Member
    Jim George Post author

    WillowSpring (View Comment):

    Locke On (View Comment):

    It’s time to do away with the FISA courts and the surveillance powers that made them necessary. We’re getting an ample demonstration that the concerns of civil libertarians, that the FISA courts would be rapidly co-opted by the agencies they were supposed to control, were dead on target. The Land of the Free doesn’t need a Star Chamber.

    If you read through the Congressional testimony that has been released by Doug Collins (available at https://theconservativetreehouse.com/along with some analysis), it is clear that the “Woods Procedures” which were put in place to make sure that the FISA requests were reliable and accurate are not worth anything without honest and honorable people in the process.

    Answers to questions range include “I trusted the people who wrote it, so I signed off on it”, “My boss signed it, so I did” and “I read the first couple of pages and signed it” No one is taking seriously the violation of an American citizen’s rights.

    In addition to the FISA judges, I think Chief Justice Roberts has a lot to answer for, since he appoints the judges and should be overseeing them.

     

    Good observations– but, in the final analysis, there is only one person who has the power to get this abuse straightened out, and that is the Chief Justice of the United States Period. (I started to say “can get this straightened out” but thought better of it as I’m not at all sure he will lift a finger to address this unconstitutional abomination in our Court system.)

    And, as to the point that it is time to do away with the FISA Court, it has bothered me for a long time that we have, within our “open” Court system, a secret Court, about which little is known except that it exists, and if that isn’t strange enough, it operates on a strictly ex parte basis, never hearing a scintilla of evidence in defense of the party to be spied on  surveilled, in this case, an American citizen who it is now clear was a totally innocent bystander caught up in a disgraceful Kabuki dance by “Masters of the Universe” who thought they had the power to reverse the votes of 60 Million citizens. In actual practice, it is totally verboten to try to talk to a Judge, or even a law clerk, out of the presence of the opposing party(ies). 

    • #15
    • May 22, 2019, at 10:54 AM PDT
    • 6 likes
  16. OmegaPaladin Moderator

    I am curious if there is a better way to manage intelligence collection? I mean, the task that is set before FISA court judges is important. We need review of surveillance without letting everyone know.

    How does the military handle this problem?

    • #16
    • May 22, 2019, at 10:55 AM PDT
    • 4 likes
  17. Jerry Giordano (Arizona Patrio… Member

    I’m not sure how a federal judge would deal with this situation. If I were a federal judge, my inclination would be to refer it to the relevant bar association for investigation. Such an investigation would probably be outside of public scrutiny until resolved.

    A federal judge (or state judge) would have inherent authority to discipline a lawyer for misconduct such as lying or misrepresentation (under the Model Rules, this would be a violation of ER 3.3, duty of candor to the tribunal). The Model Rules have been adopted (often with some changes) in many jurisdictions, and there was a Model Code that preceded them and may still be applicable in some jurisdictions.

    I’m not sure if the Model Rules would apply in the FISA court, but there is probably some equivalent. Even if the FISA court didn’t have specific rules, the lawyers involved would have to be admitted in some jurisdiction (usually a state), and the state rules would apply.

    The portion of the Model Rule applicable here is ER 3.3(d) which states (Arizona version): “In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.”

     

    • #17
    • May 22, 2019, at 11:11 AM PDT
    • 2 likes
  18. WI Con Member

    ‘Just-us’ John Roberts oversees the FISA Courts. Perhaps he thinks it’s somehow to be interpreted as a tax.

    • #18
    • May 22, 2019, at 11:19 AM PDT
    • 5 likes
  19. Jerry Giordano (Arizona Patrio… Member

    As a jurisdictional follow-up: Rule 19 of the FISA court rules (here, go to page 21) require any attorney appearing before the FISA court to be a licensed attorney in good standing with the bar of any state or DC. There is a further requirement for membership in any federal bar (circuit or district court), but this second requirement does not apply to an attorney working for the federal government.

    Attorneys as typically licensed in at least one state, and the state of admission requires payment of dues, administers continuing education requirements, and is responsible for discipline. Admission to the bar of a federal court generally does not require annual dues or CLE, and the federal bar generally does not administer discipline. There is a one-time application fee, and the general requirement for a federal court is: (1) that the attorney is admitted in a state or DC, and (2) that the attorney’s admission is sponsored by an attorney already admitted to the particular federal court.

    Personally, I’m licensed in Arizona and admitted to two circuit courts (5th and 9th) and two district courts (Arizona and Western District of Texas). I actually sponsored the admission of my current partner to the District of Arizona bar, which was simply a matter of arranging a hearing, paying a fee, and requesting that the Judge admit him. It’s quite perfunctory, though it is a nice ceremony and there is an oath involved. 

    • #19
    • May 22, 2019, at 11:22 AM PDT
    • 2 likes
  20. James Gawron Thatcher

    Jim,

    To knowingly submit false evidence to a Federal Court seems to be a behavior that can’t possibly be expected to go unpunished. Perhaps you should take the gloves off, plant your feet, and start swinging really hard.

    Regards,

    Jim

    • #20
    • May 22, 2019, at 11:37 AM PDT
    • 3 likes
  21. John Park Member

    @arizonapatriot In my experience in litigation, the courts want you to take it to the Bar and the Bar looks to the courts to do the work. 

    • #21
    • May 22, 2019, at 11:43 AM PDT
    • 2 likes
  22. Hank Rhody-Badenphipps Esq Contributor

    Do we have any proof that the FISA court actually exists?

    • #22
    • May 22, 2019, at 12:02 PM PDT
    • 1 like
  23. Rodin Member

    We may need to keep our powder dry a little longer. The DOJ IG is investigating the FISA court applications and the report is due “shortly”. If, as one would expect, it finds “lack of candor” that would be the starting gun for a series of actions. Yes, Chief Justice Roberts needs to examine the FISA matter from his supervisory role for the Judiciary and make clear — if he doesn’t want the public to think in terms of “Obama” judges and “Trump” judges — that what happened will not be tolerated by the Judiciary. Whether any judge was willing to overlook a lie is a distinct matter that the public needs to assured did not happen.

    This matter has too much public interest for the typical “behind doors” discipline to apply. The public needs to see both sunlight “disinfectant” and “steel wool” scrubbing.

    • #23
    • May 22, 2019, at 12:04 PM PDT
    • 5 likes
  24. Jerry Giordano (Arizona Patrio… Member

    John Park (View Comment):

    @arizonapatriot In my experience in litigation, the courts want you to take it to the Bar and the Bar looks to the courts to do the work.

    Where are you located? In Arizona, the State Bar does a pretty good job, and they don’t seem to mind.

    • #24
    • May 22, 2019, at 2:23 PM PDT
    • Like
  25. Jim George Member
    Jim George Post author

    @johnpark and @arizonapatriot, in Louisiana, and before the Judges I dealt with in the Federal Courts, they would usually, if a case was egregious enough, refer it to the Louisiana State Bar Disciplinary Counsel, in addition to their own sanction. They might use other means to penalize the offender, but the point I was trying to express in the post was that they would do something, and they would have done that long ago.

    Rodin (View Comment):
    We may need to keep our powder dry a little longer. The DOJ IG is investigating the FISA court applications and the report is due “shortly”. If, as one would expect, it finds “lack of candor” that would be the starting gun for a series of actions.

    That was the reason I held off this long before expressing my chagrin that nothing was being done by the Court to discipline these unethical lawyers. I do agree with you in principle, of course, but after this same IG held as an official finding that he could find no conduct on the part of reptilian people like the FBI lovebirds which would have indicated bias on their part affecting their work on this “investigation.” 

    • #25
    • May 22, 2019, at 2:59 PM PDT
    • 4 likes
  26. Jim George Member
    Jim George Post author

    Jim George (View Comment):

    Rodin (View Comment):
    We may need to keep our powder dry a little longer. The DOJ IG is investigating the FISA court applications and the report is due “shortly”. If, as one would expect, it finds “lack of candor” that would be the starting gun for a series of actions.

    That was the reason I held off this long before expressing my chagrin that nothing was being done by the Court to discipline these unethical lawyers. I do agree with you in principle, of course, but after this same IG held as an official finding that he could find no conduct on the part of reptilian people like the FBI lovebirds which would have indicated bias on their part affecting their work on this “investigation.” 

    Sorry for the failure to proofread, but of course I meant to finish this last sentence with the statement that after that astonishing statement, after these people, and others, had expressed their undying enmity to Trump and everything he stood for, including on Stzrok’s part, even the way Trump’s supporters smelled, I am not at all sure why we are supposed to think some earthshaking revelations are going to come out of him. Barr, of course– that I do have complete confidence in/ But this IG– not so much, to be charitable. 

    Sincerely, Jim

    • #26
    • May 22, 2019, at 5:16 PM PDT
    • 4 likes
  27. John Park Member

    @arizonapatriot and @jimgeorge It was when I was in Alabama, opposite a class action in which the plaintiff firm’s conduct raised ethical issues.

    • #27
    • May 23, 2019, at 6:40 AM PDT
    • Like
  28. Quietpi Member

    IANAL, but I’ve wondered about this from the start. Heck, I’ve seen lowly county judges take action, suo motu, on matters that are downright trivial compared to this. Now, at the FISA level, what does it take? Is there any check on the government’s power? Any? Apparently judges aren’t.

    I recognize the issues with things of this nature, that impact national security. Heck, that’s why, at my level, there are things like sealed search warrants. But the FISA system has become, in this world where everything is political, too much like a grand jury. A prosecutor can (and here, in this new arena, has,) run amok. And apparently from all appearances, the judiciary doesn’t care. Therefore, FISA is ineffectual, even dangerous. It has to go.

    • #28
    • May 23, 2019, at 7:46 AM PDT
    • 2 likes
  29. PHenry Member

    Quietpi (View Comment):
    IANAL

    My, that is an unfortunate acronym.

    • #29
    • May 23, 2019, at 7:49 AM PDT
    • 3 likes
  30. Rodin Member

    PHenry (View Comment):

    Quietpi (View Comment):
    IANAL

    My, that is an unfortunate acronym.

    Yes, for many people its says exactly the opposite of what they think.

    • #30
    • May 23, 2019, at 8:37 AM PDT
    • Like
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