Note to readers of this post:
I don't care if you don't read the essay I wrote, but forewarned is forearmed. Please be respectful enough to simply not respond to it if you don't read it, for there's a fair chance you will incur from me some vitriol if you respond with some BS and it's clear your response ignores something I in my essay addressed. I didn't solicit my friends for input on the FISC/FISA, read all the stuff they pushed my way, and then take the time to share with you the results of my research to receive in return "peanut gallery" remarks.
Those who have carefully read the Nunes memo will notice that it never says the application to monitor Carter Page was illegal.
That is yet to be determined. It was however obtained under a false pretense. I can't imagine that withholding information in a FISA application is legal.
Oh? Prove it was obtained under a false pretense...?
While you’re at it, demonstrate what the government hoped to gain from Trump by wiretapping someone who was not working for the Trump campaign and who had never met Trump?
It's a coming, it's a coming. Right now it looks like they withheld very important information from the court to falsely get that warrant. You see, to investigate a crime, you need evidence that such a crime possibly could have been committed. Opposition research isn't enough for that, especially when it is paid for by the opponent of the people you are spying on to prove the crime.
You see, to investigate a crime, you need evidence that such a crime possibly could have been committed. Opposition research isn't enough for that, especially when it is paid for by the opponent of the people you are spying on to prove the crime.
The FISA system does not investigate crime.
They gather intelligence. Specifically from foreign sources or their agents and assets.
The warrant on Page came about because he had travelled to Russia that summer and met with several high ranking Russian officials. Some of these meetings were described in the dossier. That is why it was used as corroborating information on the warrant application. Page has since confirmed those meetings happened in his testimony before congress.
Carter Page's testimony is filled with bombshells — and supports key portions of the Steele dossier
Your comment is that "the FISA system does not investigate crime" is something I would like to comment upon. Yes and no and here is why. The subject of government spying on US Citizens is a pretty big deal. Back in the 60s,70s. we saw multiple agencies including the operation CHAOS was "spying" on not only war protesters, but people like the women's liberation movement and all sorts of groups.
Operation CHAOS - Wikipedia. I think it was Watergate, that had 2 CIA agents involved and Congress decided to create oversight on both intelligence and law enforcement folks involved in intelligence type activities, so they created the FISA courts as a regulating agency.
United States Foreign Intelligence Surveillance Court - Wikipedia. I commend this wicki link to your reading. I have one more point to make and it goes like this> There are 4 priorities in a counter intelligence investigation and in order of critical need are as follows: 1. Identify a foreign counterintelligence source or activity (could be hacking, electronic, special, etc). 2. Neutralize the counterintelligence threat. 3. Exploit the source (make them a double agent or channel of false information, etc. 4. Prosecution. I mention this because prosecution is at the bottom of the list in importance to the security of the nation. In this case it appears they put criminal elements at the top, which is certainly OK, just not the most common procedure. Please read the wicki link because it shows thru 2013, 36,000 FISA warrants had been issued, only 12 were denied. So when they say FUSA warrants are just rubber stamped by judges, that would appear a logical conclusion. For what it is worth.
Your comment is that "the FISA system does not investigate crime" is something I would like to comment upon.
I, for one, understand well why you would; it's apt to do so for the FISC's theoretical genesis derives from what was thought of as a need for investigating risks to national security and abuses of the USIC.
As you noted, FISA was a response to two interrelated developments:
Together with the creation of the congressional intelligence committees and a series of other reforms, FISA was part of a larger structural accommodation between the three branches of government: The Executive Branch agreed to have many of its foreign intelligence surveillance activities subjected to far greater legal oversight and accountability, in exchange for which Congress and the courts agreed to provide such oversight and accountability in secret. To that end, the core of FISA as originally enacted was the authority provided by Title I of the Act, which empowered the government to obtain secret warrants for electronic -- and, later, physical -- surveillance of individuals whom the government had probable cause to believe were acting as an agent, or on behalf, of a foreign power.
To supervise these new “FISA warrants,” Congress created a specialized court -- the FISC -- to hear government applications ex parte and in camera. The court would be
staffed by seven (now eleven) sitting Article III district judges selected to serve seven year terms by the Chief Justice of the United States, three of whom “shall reside within 20 miles of the District of Columbia.” Except in emergencies (where, presumably, the locally resident judges would be available), the judges otherwise rotate through the FISC, such that each judge is on duty in Washington for one out of every eleven weeks.
If the FISC denies the government’s application, Congress authorized the government to either seek rehearing before the entire FISC, sitting en banc, appeal to the newly created
Foreign Intelligence Surveillance Court of Review (FISCR) [1] staffed by three sitting circuit judges designated by the Chief Justice, or both. If unsuccessful there, FISA authorized the government to appeal to the Supreme Court. As originally constituted, FISA thus contemplated that the FISC would resolve individualized warrant applications on a case-by-case basis,
ex parte and
in camera, and with only the government authorized to participate -- and, if necessary, to appeal.
Separate from the substantive foreign intelligence surveillance authorities codified in FISA, Congress justified the creation of a new, specialized court largely on grounds of expediency: “Requiring the special court to sit continuously in the District of Columbia will facilitate necessary security procedures and, by ensuring that at least one judge is always available, will ensure speedy access to it by the Attorney General when timeliness is essential for intelligence purposes.” [2] Moreover, a specialized court would “likely...be able to put claims of national security in a better perspective and to have greater confidence in interpreting this bill than judges who do not have occasion to deal with the surveillances under this bill.” [2]
Congress’s confidence notwithstanding, at least some experts feared that such a categorically ex parte structure for the FISC would raise serious Article III concerns. Thus, then-Professor (and future Judge) Laurence Silberman testified that “[a]lthough it is true that judges have traditionally issued search warrants ex parte, they have done so as part of a criminal investigative process which...for the most part, leads to a trial, a traditional adversary proceeding.” [3] FISA surveillance, in contrast, was designed principally (if not primarily) to facilitate foreign intelligence investigations, not criminal prosecutions. Indeed, that very orientation away from ordinary law enforcement helped to allay what otherwise might have been serious Fourth Amendment (and prudent) objections to FISA’s lower probable cause standard. [4]
Silberman’s objections were largely mooted by a memorandum (and subsequent congressional testimony) prepared by the Justice Department’s Office of Legal Counsel (OLC). Although the OLC agreed that the Article III question was “difficult,” it concluded that the structure FISA contemplated for the FISC was probably constitutional, both because (1) “FISA Court judges...would still be applying the law to the facts of a particular case” and (2) “in normal criminal cases, the government is permitted to persuade a court of the need for a warrant without the target being present.” [3 - Harmon testimony] In other words, the
constitutional defense of the FISC turned on the limited scope of the review it was providing and the analogy to “ordinary” warrant applications -- which, despite typically involving
ex parte, in camera proceedings, were understood to raise no Article III questions insofar as they were ancillary to subsequent criminal (or civil) proceedings. [5]
To further pretermit these constitutional objections, Congress revised the draft of FISA to help strengthen the analogy to “ordinary” warrants. FISA as thus enacted required that criminal defendants be notified when “any information obtained or derived from an electronic surveillance” was to be used in their prosecutions. The statute also provided an express cause of action for damages for an “aggrieved person” who was subjected to unlawful surveillance under FISA. And although FISA warrants were not typically meant to produce evidence to be used in criminal prosecutions, the fact that they could be collaterally attacked in at least some cases provided both a vehicle for raising Article III objections and the rejoinder courts would supply in rejecting them. In other words, because of the analogy to ordinary warrants and the concrete nature of the question that the FISC’s judges were asked to resolve in approving a government application, the FISC raised no unique
Article III concerns. [6]
The forgoing describes the original implementation of FISA and the FISC; however, Congress later expanded the FISC's ambit of authority. Congress in 1998
authorized the FISC to approve more than just an individual warrant, giving its judges the power under new “Title V” of the Act to issue “an order authorizing a common carrier, public accommodation facility, physical storage facility, or vehicle rental facility to release records in its possession for an investigation to gather foreign intelligence information or an [FBI] investigation concerning international terrorism....” Whereas "classic" FISA warrant applications required a determination of probable cause to believe that the target was (or was an agent of) a foreign power, this new provision only required a determination that “there are specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power.” Thus, the 1998 amendment still required a nexus to an identified suspect, but the role of the FISC had shifted, fundamentally, from approving something akin to a search warrant to signing off on something that looked much more like a subpoena directed to a (narrow) class of innocent third parties.
After the September 11 attacks, Congress dramatically expanded the business records provision through
§215 of the USA PATRIOT Act of 2001.
In particular, §215 rewrote Title V to empower the FISC to require “the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.” Unlike the 1998 language, § 215 of the USA PATRIOT Act was not limited to a small class of businesses, nor did it require any showing of a connection between the “tangible things” being sought and “a foreign power or an agent of a foreign power.”
Instead,
all the government had to show -- and all the FISC was allowed to require -- was that “there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted...to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.” Thus, whereas the 1998 addition of Title V could have been defended as a shift in the degree of the FISC’s review, § 215 represented a shift in kind -- away from any individualized inquiry about suspected agents of a foreign power and toward far broader, “bulk” collection against putatively unidentified individuals.
Perhaps because of the fundamental shift in the role of the FISC that § 215 portended, the USA PATRIOT Act also for the first time authorized adversarial participation before the FISC. Thus, anyone receiving a “production order” under § 215 was given the right to challenge the order before the FISC on the ground that it “does not meet the requirements of [section 215] or is otherwise unlawful.” [7] Furthermore, if such a challenge failed, the recipient was further empowered to petition for review of the FISC’s decision with the FISCR, and, if again unsuccessful, petition for certiorari with the SCOTUS. [8]
thru 2013, 36,000 FISA warrants had been issued, only 12 were denied.
Given the above history of FISA/FISC inception, FISA case law and related jurisprudential analysis, and Congress' procession of updates to FISA code, it becomes clear there are two primary genres of FISC matters -- "classic" ones and, for want of a better term, "post-9/11" matters. The former consist of very straightforward individual surveillance, which is precisely what's involved in the Carter Page case.
In the context of “classic” FISA, then, one may credibly defend the FISC’s process via the analogy to warrants becuse FISA warrants are generally still subject to collateral attack, whether through
Franks-like motions to suppress in criminal cases, or through civil suits under FISA’s own cause of action. That, as one might infer from your remark about denail,
OldGringo, these efforts rarely succeed does not of itself prove their unavailability. After all, even in the context of “ordinary” warrants, collateral attacks are, in practice, only realistically available in a small minority of cases. Moreover, the point of granting both standard and FISA warrants is investigative. What good is served by a court's refusal to grant investigators the authority to, well, figure out just what happened?
Notes:
- See also: EPIC - Foreign Intelligence Surveillance Court (FISC)
- See:
- See:
- Foreign Intelligence Surveillance Act, Hearings on H.R. 5794, H.R. 9745, H.R. 7308 and H.R. 5632 Before the Subcomm. on Legislation of the House Permanent Select Comm. on Intelligence
- Part 1A
- Part 1B [You gotta love the government....they created parts A & C because part B was redacted from the original document]
- Part 1C
- I could have done without including this part of the essay, but I recall someone on here remarking about a higher burden of proof for FISC matters, and I responded that the very opposite is what makes sense....Oh, I just recalled who it was...It's the now-understood-by-me-to-be sycophant Bill O'Reilly put forth as someone who was supposed to know what he was talking about re: FISA/FISC to help O'Reilly build a "staircase on facts." Well, that's one shaky staircase if it's built on anything having to do with the burden of proof, the higher standard that guy alleges exists for FISA surveillance warrant applications (~7:45). (And no, until I'd finished my preparation for this essay, I didn't know for sure that the FISC's burden of proof standard for warrant applications is lower than is a "normal" court's; I just knew it doesn't "smell right" that it would be higher than that of a "normal" court.)
While the guy may indeed be right in some respects, it seems to me odd that he be right.
See:
- The Case for a FISA 'Special Advocate'
Applications in the non-FISA context require probable cause to believe that the suspect committed a crime. FISA, in contrast, requires probable cause to believe that the target of the surveillance is, or is an agent of, a “foreign power.” The relaxed probable cause standard in the FISA context has been challenged as not satisfying the Fourth Amendment’s Warrant Clause. But that argument was rejected by numerous courts prior to September 11 2001, at least largely because of the “primary purpose” doctrine -- which required the government to certify that the primary purpose of a FISA warrant was foreign intelligence surveillance and not ordinary law enforcement.
- United States v. Truong Dinh Hung
Because of the need of the executive branch for flexibility, its practical experience, and its constitutional competence, the courts should not require the executive to secure a warrant each time it conducts foreign intelligence surveillance.
- United States v. Johnson -- “[T]he investigation of criminal activity cannot be the primary purpose of the surveillance.”
- Pfander and Birk have identified FISA warrant proceedings as emblematic of a larger species of “non-contentious jurisdiction” -- cases in which it has long been understood that Article III’s typical requirement of “adverseness” simply does not apply, whether or not the judicial review is ancillary to subsequent proceedings.
- United States v. Megahey
Applications for electronic surveillance submitted to FISC pursuant to FISA involve concrete questions respecting the application of the Act and are in a form such that a judge is capable of acting on them, much as he might otherwise act on an ex parte application for a warrant. In the case of each application, the FISC judge is statutorily obliged to ensure that each statutory prerequisite is met by the application before he may enter a surveillance order. The FISC judge who is faced with a surveillance application is not faced with an abstract issue of law or called upon to issue an advisory opinion, but is, instead, called upon to ensure that the individuals who are targeted do not have their privacy interests invaded, except in compliance with the detailed requirements of the statute.
- Remember all the hoopla about whether Apple would aid the FBI with decryption? Well, now, if not before, you and I know from what specific code section there was allowed to be such hoopla.
- Additional Congressional updates to FISC/FISA procedures and authorities:
- Protect America Act of 2007 (this was a temporary act)
- FISA Amendments of 2008 (this is the permanent act that supersedes the 2007 one) -- This update:
- is principally concerned with the collection of information involving non-U.S. persons, but that transited through servers, internet switches, or other infrastructure located within the United State,
- provides more detail about the nature and extent of the adversarial review process, including procedures for initial, and, if warranted, plenary review, and
- contains express authorization to hold non-compliant parties in contempt.
