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Is the FISA Court Worse Than Nothing?

February 7th, 2018 Leave a comment Go to comments

4th Amendment expert Professor Orin Kerr tweets:

“American Greatness blog: Every govt official involved in the Page FISA application should be jailed for their crimes (what crimes, who knows, that isn’t mentioned). Then Congress should repeal FISA so there is no judicial check on surveillance.” (Wut?)

He’s right to have that reaction. Angelo Codevilla’s article, “Jail the Guilty, Repeal FISA,” is sloppily written, and seems stupid at first reading. After some thought, though, I think Codevilla may be right.  So let’s see if we can explain his idea better. 

First, for what crime should the various government officials who signed off on the FISA warrant applications be jailed?  Codevilla writes:

“The officials who signed the applications—including FBI Director James Comey, Deputy Director Andrew McCabe, acting Attorney General Sally Yates, then-acting Attorney General Dana Boente, and then-acting Attorney General Rod Rosenstein—are guilty of misrepresenting material facts to a federal court. All of them belong in the slammer—for at least a little while.”

The crime would be contempt of court, and it is the judge whom they deceived who would have to charge them and jail them. The FBI officials are not covered by the “Martha Stewart law”,  18 USC 1001,   that criminalizes lying to federal officials, because the statute specifically exempts lying to judges in court papers. Maybe there are other provisions criminalizing fraudulent warrant applications too, but it sounds like Codevilla is talking about contempt.

Second, why does Codevilla say repealing the FISA law, with its requirements, would help?  It’s not that Codevilla wants the FBI to have to go through the ordinary process of applying for search warrants through ordinary courts. Kerr is right that Codevilla is saying “there should be no judicial check on surveillance” when the FBI investigates foreign spying. Codevilla says:

“Prior to FISA, American intelligence agencies had done national security electronic surveillance under the president’s power as commander in chief of the armed forces. The president and his agents were responsible for doing it properly.”

But how could removing extra requirements for searches lead to fewer improper searches? That’s what Codevilla is claiming.

The answer is that the extra requirements provide protection for improper searches by giving them a “safe harbor” if they meet technical requirements, even if they are grossly improper.  The issue changes from “Was it ethical?” to “Was it legal”?

Without the FISA law, if the Democrats paid the company of a top FBI boss’s wife to write libellous documents for the FBI to use  as an excuse to wiretap a Republican during an election, that’s where the attention would be. It would be the FBI’s decision. They would have to defend it as needed to protect America from foreign enemies.

With the FISA law, the discussion is about whether it was enough that the carefully written FBI footnote in the warrant application said the dossier was from a politically motivated source, or whether they had a duty to inform the judge that it was the Clinton campaign and connected to the wife of a top FBI official. The FBI can say, “We gave the facts to the judge, and he decided the wiretap was appropriate. It was his decision, not ours.”

Thus, FISA is a tool for the FBI to use to protect itself when it engages in illegal behavior, to give it a legal fig-leaf. Codevilla tells us:

“The main push for FISA, in fact, came from the FBI and NSA. Wishing to preclude further lawsuits, the agencies issued Congress an ultimatum: no more national security wiretaps unless each tap has the approval of a judge (thus absolving them of responsibility). FISA established a court to review warrant applications for national security electronic surveillance, in secret and without contrary argument.”

If the FBI wants to wiretap somebody, it just has to commission some private informant, or even  an overtly political consulting firm employing relatives of FBI agents,  to provide probable cause. In the unlikely event that Congress is controlled by the opposite party and investigates, muddy the waters by saying it was all done legally.

What about the judge? Will he do anything? We’ll see, in this particular case. I doubt it. Here’s a story of what might have happened. I don’t know that it did, but it’s the kind of thing we have to worry about, and it seems to fit the facts nicely. The FBI wants to get emails from people in the Trump campaign, just as insurance blackmail in case Trump wins and tries to find out why they closed the Clinton investigation, or cut the FBI budget, or demote some top FBI officials. They look into the files, and see that they investigated Carter Page a few years back. They didn’t find anything then, to be sure,   and they can’t just say, “Give us another try,” but the old suspicion gives them somewhere to start and some things to bulk up the warrant application.  So Deputy Associate Attorney General Bruce Ohr tells his wife Nellie, who works for Fusion GPS, that they need some incriminating documents. She gets some money from the Clinton campaign and hires Christopher Steele, whom she knows hates Trump and has an intelligence background, to help her generate the documents. Steele then takes the documents to the FBI, and to the press also, to get a newspaper article written that will show up in a Google search and seem to corroborate him. The FBI then takes this to a FISA judge. I don’t know how FISA judges are assigned to individual warrant applications but I wouldn’t be surprised if the FBI could judge-shop by withdrawing their application if the first judge they got wasn’t a safe Trump hater (I almost wrote “Democrat”, but of course all liberal Republicans and many conservative Republicans also hate Trump.) The judge grants the warrant, and the FBI looks back at all Page’s emails of the past year to see if they can find something bad about someone in the Trump campaign who’s more important than Page, who was just picked as a convenient point of entry. They don’t actually find anything, to their surprise, but they leak the dossier as a shot across Trump’s bow, to signal to him that he’d better not mess with the FBI because next time it might be worse.

What can we do to block the FBI from doing things like this? After all, even if it didn’t happen this way, the current system wouldn’t keep this kind of thing from happening. I deleted this part of the post on Feb. 15, since I cover it in more depth as a separate blog post,  http://rasmusen.dreamhosters.com/b/2018/02/reforming-the-fisa-court-a-second-post-on-the-public-defender-idea/.

Update: [Feb. 15]:  At the law-and-economics lunch today, the topic of the Carter Page memos came up, and I discovered an argument that surprised me: that if a warrant has “probably cause”, then the political views of the FBI agents doesn’t matter, nor does whether the target is politically important. That is, the standard should be the same whether (a) The FBI agent is getting the warrant to search an army officer who is suspected of being a spy and the informant is the  suspect’s hostile ex-wife, or (b) The FBI agent is getting the warrant to search his wife’s political enemy and the informant is his wife’s political party. There’s no conflict of interest! There shouldn’t be one standard for politically important figures and another for ordinary criminals. Informants are often biased, so that it is a political organization shouldn’t matter.

Only a lawyerly mind could come up with that, and only because the FISA rules change the question from whether it is legal to whether it is right. If we didn’t have the FISA court, and we merely asked whether the FBI misbehaved in case (a) and case (b), we would conclude that case (a) was okay and case (b) was not. There are two key differences. One is that in case (a), the FBI itself has no motive for making false accusations. It is just creating work for itself when it investigates. In case (b), the FBI has plenty of motive to get information to hurt or blackmail a politician whom they care about and who would have power to do things the FBI liked or disliked. The second key difference is that in case (a), the damage to civil liberties is limited to one individual, the army officer. In case (b), it is an entire political party that is being illegally investigated, and, really,  it is all citizens who are threatened by the FBI abusing its power to affect national policy.

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