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Reforming the FISA Court: A Second Post on the Public Defender Idea

February 13th, 2018 Leave a comment Go to comments

On February 7, I blogged on how to reform FISA procedure, suggesting (a) public defenders, and (b) preventing the FBI from getting to pick the judge they want.  Later I came across Judge Reggie Walton’s 11-page letter  (with the FISA rules as an appendix) written  in 2013 to Congress to let them know how the court worked. It’s must reading for anybody opining on the Carter Page scandal. What I learned from it is that (a) the judges do have staff attorneys that take a hard look at the FBI applications for search warrants, (b) the court works with the FBI to narrow down warrants to where they’re appropriate (which is one reason hardly any get rejected—lots get modified before approval), and (c) it looks to me as if the FBI can indeed cherry pick judges.

(1) Here is my proposal.

First, the court should appoint some staff attorneys as public defenders, who should take the devil’s advocate position against every application, rather than a neutral position as the staff attorneys now do.

Second, the identity of the judge deciding applications in a particular week (the “duty judge”) should be kept secret in advance, and he should only handle applications that were processed by the staff attorneys and ready to go the week before, so neither the prosecutors nor the staff attorneys can pick the judge. If the prosecutors withdraw an application and resubmit it, it should go back to the same judge. If we add public defenders to the system, we could allow these rules to be waived with the permission of the case’s public defender. Also, great care should be taken with the discretion given the Chief Judge to assign special cases.

Third, both the public defender and the prosecutor should be allowed to appeal to the appellate court or to the en banc FISA court. At the moment, since it’s ex parte, only the prosecutor can appeal. The staff attorneys can’t appeal— they are just there to help the judge, and if they disagree with him, it makes no difference. I suggest that the first appeal be to a random 3-judge panel drawn from the FISA court, since that’s fair enough and much easier and faster than en banc. The public defender should not be expected to appeal, and should be rebuked if his appeals are frivolous, or even if they are non-frivolous but with low likelihood of success.

The reasoning starts with the idea that the prosecutor should not make his argument to the judge unopposed. It’s important that these warrants be secret, so the target can’t have his own lawyer present, or even be told about it. But that doesn’t mean he can’t have someone looking out after his interests.  There should be a court-appointed “public defender” or “devil’s advocate”, a skilled attorney who is given access to everything the prosecutor sees and whose job it is to present the best case possible against the warrant.  This attorney would do his best,  and his job would be done once the application was finally granted or denied  (though that might be after an appeal), so there would be no problem for the prosecution of giving the defense warnings in advance. Indeed, the biggest problem for FISA warrants is that they are intended for protecting national security, not for prosecuting crimes, and so there will rarely be any chance for the target to argue against the surveillance in court and get illegally obtained evidence excluded. All the action is at the warrant level.

Our judicial system is an adversarial system, with a judge depending on two lawyers arguing on opposite sides. When only one side has someone arguing for it, this system fails, no matter how smart the judge, and even if the judge has staff attorneys and clerks, though that does help, since they are not so focussed on particular cases. So  the FISA courts should be provided with the balance they need: a lawyer to call out the Justice Department when it abuses its power.

(2)   Angelo Codevilla’s article, “Jail the Guilty, Repeal FISA,” talks about the history of FISA a little bit.  I’ve been reading Victor Lasky’s It Didn’t Start with Watergate about the Kennedy, Johnson, and Nixon administrations, which is very helpful in these dark times.   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.”

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.”

An important story to remember is that around 1980, several top FBI officials were convicted of having authorized illegal surveillance of the homes of relatives of radical fugitives around 1970. One of these officials was Felt, known as “Deep Throat” in Watergate.  They hadn’t bothered with warrants, probably because what they were after wasn’t evidence for use in court (where it would have been rejected), but just catching the criminals. They were clearly guilty, but it looks to me as if they could have gotten the warrants if they’d bothered, but they thought they didn’t need to. Reagan, I think, pardoned them all. Anyway, I expect the FBI officials thought they were protected by prosecutorial discretion, but the Carter Administration broke the implicit deal, so the FBI after that wanted to be sure its people were protected.

(3)  As a separate matter, readers will probably readers will be interested in Rule 13, which I haven’t seen any of the pundits citing:

Rule 13. Correction of Misstatement or Omission; Disclosure of Non-Compliance. (a) Correction of Material Facts. If the government discovers that a submission to the Court contained a misstatement or omission of material fact, the government, in writing, must immediately inform the Judge to whom the submission was made of: (1) the misstatement or omission; (2) any necessary correction; (3) the facts and circumstances relevant to the misstatement or omission; ( 4) any modifications the government has made or proposes to make in how it will implement any authority or approval granted by the Court; and (S) how the government proposes to dispose of or treat any information obtained as a result of the misstatement or omission. [ I omit part (b), which is about wrongful implementation.]

(4) I’ll repeat my story of what I think 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 leadership  of the FBI wanted in 2016 to get emails from people in the Trump campaign,   as insurance blackmail in case Trump won and tried to find out why they closed the Clinton investigation, or to cut the FBI budget, or to demote some top FBI officials. They looked into the files, and saw that they’d investigated Carter Page a few years back. They didn’t find anything then, to be sure,  and they couldn’t just say to the FISA court, “Give us another try,” but the old suspicion gave them somewhere to start and some things to bulk up the warrant application.   So Deputy Associate Attorney General Bruce Ohr told his wife Nellie, who worked for Fusion GPS, that they needed some incriminating documents. She got some money from the Clinton campaign and hired Christopher Steele, whom she knew hated Trump and had an intelligence background, to help her generate the documents. Steele then took the documents to the FBI, and to the press also, to get a newspaper article written that would show up in a Google search and seem to corroborate him. The FBI then took all this to a FISA judge.  Maybe the FBI first got a skeptical judge, but they could withdraw their application and resubmit it during a week when they knew the judge would be sympathetic.  The judge granted the warrant, and the FBI looked  back at all Page’s emails of the past year to see if they could 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 didn’t actually find anything, to their surprise, but they leaked 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. Also, they were then able to use the Page investigation to justify a special counsel who could sniff around and maybe find something real that Trump had done wrong.

 

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  1. fromhatstoheels
    February 28th, 2018 at 10:17 | #1

    The appeals brief argues that prosecutors twisted that “obvious misstatement” into a “critical concession. ” “To a jury starved for something it could understand, the prosecutor’s endorsement of Dazey’s misstatement must have seemed a comprehensible proposition with which it could too easily agree,” attorneys for the defendants said in their brief.

  2. kazu
    February 25th, 2018 at 16:09 | #2

    Just a few months into his term as President, Trump’s administration came out strongly against reforming FISA. On the day the Senate voted to pass the FISA Amendments Reauthorization Act, it was revealed that a top secret document outlining serious abuses of FISA that occurred was shown to members of Congress and could be released later this month. On the same day President Trump signed the reauthorization bill into law, Representative Matt Gaetz of Florida’s 1st District went on television and mentioned the abuse of FISA. The document is alleged to be a House Intelligence Committee report which highlights abuse of FISA warrants.

  1. February 15th, 2018 at 15:41 | #1