The FBI and FISA Court Reaction to the DOJ IG Report Shows Why FISA Should Be Abolished

The report released by Department of Justice Michael Horowitz was a eye opener. Horowitz’s investigation revealed a deeply politicized and corrupt FBI working hand-in-glove with a complacent and compliant Department of Justice in order to carry out a program of political espionage, if not outright sabotage, on the campaign of the GOP candidate, Donald Trump. As Horowitz stated in his Senate testimony, that despite the lack of documentary evidence of political bias, one is forced to choose between epic incompetence and intentional actions to explain the entire chain of events.

One of the biggest issues revealed by Horowitz was the extent to which the Foreign Intelligence Surveillance Court (FISC), that august body which the media and NeverTrump portrayed to anyone who would listen as an elite Justice League of judges, was a supine, comatose rubberstamp for whatever nonsense the FBI and its collaborators at Department of Justice threw at it. This is not a shock, not that long ago their approval rate of FISA warrants was a stunning 99.97%. That number virtually reeks of a very tame, rubberstamp-style court. While Horowitz identified over a dozen “errors” by senior FBI officials in requesting a FISA warrant and two extensions of that warrant on Carter Page, there were zero questions asked by the judge involved and the judicial input consisted of minor changes to punctuation despite the ultimate target being a candidate for the presidency.

While the FBI lied about the evidence against Page and hid from the court the fact that Page was working for another intelligence agency and lied about the credibility of key witnesses, the court that is supposed to prevent abuses of what I think is a constitutionally suspect process simply signed the warrants and moved on.

Yesterday, the FISC issued a letter chastising the FBI over their actions (READ: Secret FISA Court Makes Rare Public Statement, Chastises FBI for Misleading Them on Carter Page Warrant Applications). FBI Director Christopher Wray respsonded (READ: FBI Director Wray Responds to the FISA Court’s Statement and Shows It’s Time for Him to Go).

The court’s complaint and Wray’s response were not satisfactory. At best, the court said “fine, don’t do it again.” Wray threatening the FBI with workshops and a 40-point plan is a joke.

Let’s be clear. For the FISA process to be acceptable, there must be some safeguards in the system. Those clearly do not exist. The system consists of a very one-sided procedure where the FBI decides someone merits surveillance and literally makes up information to justify it. They are able to do that because the FISA warrants, themselves, are classified. If information is uncovered that leads to a criminal prosecution, there is no way for defense attorneys to see the FISA warrant application and challenge the cause given. In the words of an increasingly obscure document:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

That right, as we’ve seen, has largely been snuffed out in this process.

Make no mistake about it, felonies were committed during this fiasco. FBI lawyer Kevin Clinesmith, who led the FISA effort against Page and went on to a senior position on Mueller’s team while texting anti-Trump statements to friends, actually falsified a key document used to obtain the warrant. This is not only perjury, it is a clear act of depriving Carter Page of his Constitutional rights under color of law. Other federal agents perpetrated fraud upon fraud on the FISC by lies and misrepresentations. Senior FBI and Justice Department leaders either knew this was happening and approved of it, or they should have known. By any measure no exercise of anything like due diligence on the part of leadership took place and, thus, this was permitted to happen.

This takes us to an interesting statement in the FISC’s letter:

The frequency with which representations made by FBI personnel turned out to be unsupported or contradicted by information in their possession, and with which they withheld information detrimental to their case, calls into question whether information contained in other FBI applications is reliable.

For three years and some change I was a member of the Army Inspector General’s Office and detailed as an investigator. One pattern that struck me was that whenever we received an allegation of misconduct, either by an individual or organization, nearly invariably an investigation would find extensive misconduct. My theory was that when a person first starts to break the law, they do it in small ways and are exceedingly careful. But over time it becomes a habit, a lifestyle choice. By the time the misconduct is reported in sufficient detail to warrant an actual investigation you are at a point where illegality is so pervasive that no one is taking any precautions against discovery.

Consider this case. This was going to be perhaps the most high profile FBI investigation of the last half century. The FBI (and I think the CIA) were running informants and dangling “OCONUS lures” in front of Trump campaign staffers trying to create a fact pattern that would demolish the Trump campaign. The President of the United States was briefed on the operation. If they were successful, a presidential candidate was going to have several members of his senior staff arrested for acting as knowing agents of a foreign power. They had to know that if they were successful that their methods would come under extreme scrutiny. If there was ever a time for procedures to be meticulously followed, all the i’s dotted and all the t’s crossed, this was that time. But what did the FBI, Justice, and the FISC do? The FBI engaged in extensive fraud. Justice signed off on it. And the FISC had a nice hot cup of “I don’t care.”

To me this all suggests is that what the FBI did here is not unusual but rather so commonplace that it never occurred to anyone to say “hey, this is f***ing illegal, maybe we shouldn’t do it.” They wanted a FISA warrant to allow the Obama administration to look inside of the Trump campaign and they did what it took to get it. If they did this in the highest profile case in living memory, what are they doing to the private citizen who runs afoul of the system?

Were Wray…or even Barr…terribly serious about what went on, there would already be people in prison because it is important to show broken organizations that there are personal risks in lying to courts and blithely violating the rights of US citizens simply because you can slap a “Top Secret” stamp on the paper trail. There should have been extensive firings by now. The firings and arrests should have received at least as much coverage as the SWAT team that took out Roger Stone. If the FISC had been serious, there would have been a demand for a detailed report on criminal and administrative actions taken in the Page case. There might have been a special master appointed to do an audit of FISA applications. Crickets. Freakin crickets.

But none of that has happened. And no, I don’t are about what Durham is doing because speed and violence of action is how you get the attention of people who are convinced they are above the law.

There is no doubt that the FISC is garbage and the FISA process a sham. There is substantial doubt that you can ever create a program in which rights can be secretly violated and discovery of those violations damned near impossible that will not, inevitably, lead to lawlessness. It is equally clear that the FISC, the FBI, and Justice are taking this as a joke and simply giving the illusion of action while waiting for the storm to die dow. Because of that, I think Congress needs to act to eliminate this monstrosity. I think we are safer letting a smallish number of legitimate targets evade surveillance that making all of us subject to unfettered and uregulated surveillance. In the words of some dead white guy, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”