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The FISA Court Finally Speaks
The FISA Court has issued an order in response to being deceived by the FBI, and they have rebuked the FBI for misleading them. That’s nice. I guess that makes it a tad more difficult for Schiff, Comey, et al., to lie about what the FBI did.
THEREFORE, the Court ORDERS that the government shall, no later than January 10, 2020, inform the Court in a sworn written submission of what it has done, and plans to do, to ensure that the statement of facts in each FBI application accurately and completely reflects information possessed by the FBI that is material to any issue presented by the application.
I’m sorry. This sounds a little too much like a “sternly worded letter,” if you know what I mean. No teeth. They disclose what the FBI did, but then tell the FBI to propose their own solution. Haven’t we had enough of flagrantly dishonest agencies policing themselves?
One caveat. The court demands that by today, 20 December 2019, the FBI complete a declassification review of a previous order from the court demanding answers to certain questions the court had regarding actions of an attorney in the Office of General Counsel. That’s the guy who altered the email to misrepresent the status of Carter Page as a government informant. The Court states it expects to release that document with minimal redactions subject to that declassification review.
So, today perhaps, we can expect a little more color than was provided by the IG report on what was going on at the FBI.
Reserving judgment until the details are released but, so far, not impressed!
Published in General
Watch what does — or doesn’t — happen with Kevin Clinesmith, since it’s already a known fact he’s been singled out in the IG report for altering the Page FISA app to fool the court into thinking he was not a CIA source. If Clinesmith’s name either disappears from view, or if somehow he ends up being pegged as some type of lone wolf, where punishing him solves all the problems, then you’ll know the FISA judges and the rest of the system handling this aren’t serious about reform, but just want to move past it and hope the public forgets about the violations.
I think it’s worth noting that the court’s powers are limited. This “sternly worded” letter is about what it can do. It doesn’t have the resources or power to investigate misconduct, nor does it have the ability to verify the information brought to it. Courts have to rely on what’s presented to them by the advocates. This is true of all courts. If it can identify a particular perpetrator who’s in front of it, the court can hold that person in contempt, and impose fines and perhaps some jail time. But even that’s a remedy for an individual malefactor. You can’t really hold the entire FBI in contempt and it would be pointless in any event. What are they going to do? Have one branch of the federal government pay a fine to another?
I do hope the court looks at future applications with a little more jaundiced eye. That’s the one positive that could come out of this absent congressional action to eliminate, or alter the structure of, the FISA court.
So why haven’t they?
We have specific known instances. They were presented by individuals. Has the court called those individuals in and held them to account?
I’m not so sure we do. The only one I know if is the lawyer who altered the email. I’m not sure if he was actually in front of the court and moreover, he’s been referred for criminal prosecution which is much more than the court can do to him. Knowing that, I wouldn’t expect the court to intervene in his case.
The documented abuses of power by the FBI in this matter ought to make us more vigilant of the same offense in any other executive agency with the power to violate the constitutional rights of citizens. I fear that the bureaucrats who were implicated in the “irregularities” cited in the Horowitz Report are not exceptional. There are a million of these people in every executive agency, who have the power to get your private records—be they health, financial, or otherwise—to advance their own agendas or to settle their own petty scores. It’s a nightmare. As the administrative state expands, the frequency of these violations will likely increase. While these abuses are extraordinary because of who they victimized, I can’t help but think that average people have their rights violated all the time. That which infects one limb of the body inflicts all other limbs.
It was interesting. Sen. Feinstein said that she had been reading FBI Inspector General reports like Horowitz’s for years. In other words, this is just one more. Others on the Senate Judiciary Committee seemed almost bored by Horowitz’s findings. This stuff has been going on for years but it doesn’t get publicized.
Kim Strassel, in today’s WSJ:
https://www.wsj.com/articles/fisa-court-owes-some-answers-11576799937?mod=opinion_featst_pos2
excerpt
Sad. I am eagerly awaiting more information from the court today or the next few days, but I have very low expectations.
In other words, either she is in on it or just doesn’t care at all.
Thus the problem with government. They can do whatever they want and nothing can be done about it.
Interesting take @catorand. But I see no reason why the judge couldn’t hold a contempt hearing, demand the presence of the lawyers who signed the applications and Kevin Clinesmith, and question those lawyers about the reported malfeasance. After making that record (and if the admissions supported it), the court could impose personal sanctions against the lawyer which could include fines or disbarment from appearing before that court. If I were the judge I would be very angry after that report.
In the FISA court, “advocate” [singular]. The “defense” doesn’t appear.
And the whole point of having the FISA court review what’s presented by the advocate is that we *can’t* rely on them. The court is supposed to question what’s presented.
If we can “rely” on the FBI, why bother with the court in the first place?
If FISA was as effective as the ‘spooks’ and their minions throughout government says it is. 9-11 would never have happened.
I’m assuming you’re not a lawyer. “Initiating a thorough investigation” is just not what courts can do. Nunes’ letter was meant for public consumption. Unless he’s incompetent, he knew the court neither could, nor would, comply with his request.
You’re right about there being no defense, although that’s true of all warrants, not just FISA warrants.
I don’t understand in this time of readily available recording technology why all serious proceedings, inquiries aren’t recorded – and recorded in a way which makes any changes obvious. The FBI interviews someone and writes up their ‘301’s (or is it a 302?) notes. Everything should be recorded. Anything else is an opportunity for corruption.
I concur it makes no sense the FBI cannot both write a 302 Report and video record all interviews.
My instincts infer the 302 Report only interrogation/interview method could be self serving to the FBI agent attempting to make a case, and inherently prejudicial to the interviewee.
The FBI has completed the declassification review of the 5 December order I referred to in this post. It’s a two page letter, and you can read it for yourself here.
In summary, the FISA Court orders the FBI to:
1) Include an explanation for the delay in notification for any subsequent letter identifying any other errors or omissions.
2) Identify all FISA cases in which the tainted lawyer was involved.
3) Identify the steps taken to verify information in those cases.
4) Inform the FISA Court as to whether or not the attorney in question has been referred to the Bar Association for disciplinary action.
The order also states that as of 5 December when this FISA Court Order was written, the Court had not yet seen the IG report, but was relying on supplemental letters that the FBI had sent to notify the Court of errors or omissions in the Carter Page FISA application.
Note: Contrary to the letter released publicly by the FISA Court on December 17, not only was this 5 December order to be given a declassification review by today’s deadline, but the FBI was also ordered to provide answers to the questions posed. The 17 December letter had stated that the deadline for response was 10 January, 2020.
While we now have the order with the questions, we still haven’t seen the FBI’s response to those questions.
I mentioned in my original post that I would withhold judgement until I saw this letter. Now that I’ve seen it, I am still not impressed.
Michael, what procedures would replace the current FISC process for conducting counter intelligence investigations on American citizens if the court were disestablished?
Maybe I’m getting past things mixed up, but I seem to remember that back when all the Patriot Act stuff was being considered, including expansion of the FISA powers, some checks on these procedures were proposed. Republicans and Democrats voted not to implement them.
Maybe we should go back and review those proposals.
It’s getting to mean that it only takes more sophisticated skills to fiddle with the record.
Congress: “Now I’m giving you this credit card, but I expect you to behave responsib – ”
FBI: “Wheeeeeeeee!” ~runs off~
Hm. I thought the Foreign Intelligence Surveillance Act was about surveilling foreigners. Or maybe I missed your /sarc tag.
I think that this is a bigger deal than most people appear to recognize. Time will tell, but I think that this is a very serious order. I’ve practiced as a litigation lawyer for over 20 years, so I have significant familiarity with the powers of courts and the import of orders such as this one, though I do not have any specific experience in the criminal prosecution or defense area, much less the FISA court.
The order linked in the OP, dated December 17, is very harsh. It condemns the misconduct of the FBI, and gives the government a very short deadline — January 10, 2020 — to provide ” a sworn written submission of what it has done, and plans to do, to ensure that the statement of facts in each FBI application accurately and completely reflects information possessed by the FBI that is material to any issue presented by the application.” This is an extremely short timetable to overhaul FBI procedures and explain, under oath, what has been done and how it will work. The order further requires:
This is basically an order telling the FBI: (1) tell us, under oath, within 3 1/2 weeks, how you are going to make sure that this type of abuse never happens again, and (2) if you can’t implement such changes this quickly, tell us why we should trust anything that you say.
It gets better. I think that this is the best paragraph:
Yikes! If I were a lawyer receiving this, I would be in panic mode. Well, at least on behalf of my client. I wouldn’t be personally worried if I was new to the case, and had not been involved in the prior misconduct.
[Cont’d]
I don’t view this as a sternly worded letter, or a slap on the wrist. Judges are professional and calm, generally speaking, and preside over a system designed to give the accused an opportunity to be heard. This is the sort of order demanding that a party explain itself — and if that party fails, the hammer may well come down.
It gets worse for the FBI.
The December 17 order references a prior order dated December 5, specifically dealing with the unnamed OGC lawyer (I think it is Kevin Clinesmith). The December 5 order is characterized as follows:
The December 5 order is currently classified. The end of the December 17 order states:
That’s a three day deadline. Three days is an extremely short time, and it passed yesterday. Notice the end — “the Court expects that such review will entail minimal if any redactions.”
I expect that the December 5 order is absolutely scathing. We’ll see.
This could well be the lull before the storm. I don’t imagine that too many federal judges would appreciate getting played.
Starting January 10, keep an eye out for changes on the FISC public filings page:
https://www.fisc.uscourts.gov/public-filings
The 12/5 letter starts “On October 25, 2019, and November 27, 2019” the gov’t filed letters about: 1) Page having a relationship with a gov’t agency (presumably CIA) and 2) the apparent fraud of Clinesmith.
Page’s relationship with the CIA had been discussed in the media for years:
https://www.nbcnews.com/news/us-news/carter-page-once-linked-trump-campaign-russians-claims-multiple-fbi-n758206
1/10/2020 response:
https://www.fisc.uscourts.gov/public-filings/response-court%E2%80%99s-order-dated-december-17-2019