Bad People Lied to a Kangaroo Court

The bigger issue is FISA’s evisceration of the Fourth Amendment.

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Guest post by Robert Gore at Straight Line Logic

2/4/18

Due to the sensitive nature of foreign intelligence activity, FISA [Foreign Intelligence Surveillance Act] submissions (including renewals) before the FISC [Foreign Intelligence Surveillance Court] are classified. As such, the public’s confidence in the integrity of the FISA process depends on the court’s ability to hold the government to the highest standard—particularly as it relates to surveillance of American citizens. However, the FISC’s rigor in protecting the rights of Americans, which is reinforced by 90-day renewals of surveillance orders, is necessarily dependent on the government’s production to the court of all material and relevant facts. This should include information potentially favorable to the target of the FISA application that is known by the government. In the case of Carter Page, the government had at least four independent opportunities before the FISC to accurately provide an accounting of the relevant facts. However, our findings indicate that, as described below, material and relevant information was omitted.

House Intelligence Committee FISA Memorandum, 1/18/18, Declassified 2/2/18

It’s hard to read the above without laughing. The only people who think that the government in a non-adversarial, secret, non-reviewable judicial proceeding will produce “all material and relevant facts,” including “information potentially favorable to the target of the FISA application,” are those pathetically deluded souls who believe that when rules, regulations, and laws are promulgated everyone complies, including the government that promulgated them. They’re always shocked when reality proves otherwise.

The rest of us might want to consider what it took for this exposure of potential government wrongdoing before the FISC. The House Intelligence Committee (HIC) pressed for months and was forced to threaten subpoenas before the Department of Justice and the FBI turned over the evidence upon which its memorandum is based.

If this wasn’t such a high-profile partisan battle, impinging on the presidency, that effort never would have been made. Had Hillary Clinton been elected or Democrats controlled Congress, none of this would have seen the light of day. The intelligence agencies and the FBI can rest assured, it will be business as usual before the FISC: non-adversarial, secret, non-reviewable proceedings in which they can allege, unchallenged, pretty much anything they want, their surveillance requests rubber-stamped by the court (historically it’s approved over 99 percent of all requests).

It is a measure of President Trump’s contempt for civil liberties that he just signed a reauthorization of the FISA law that was used to infringe his civil liberties. The reauthorization expands the government’s surveillance and bulk data capture of Americans’ personal information pursuant to general warrants that do not “require probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (Fourth Amendment, US Bill of Rights).

Most importantly, the reauthorization “would permit the use of evidence of crimes in federal court even when it is discovered during mass surveillance authorized by general warrants.”  Trump will overlook that little infringement of his rights in the interests of expanding his access to information and the power implicit in such access. He pursues power and is quite proficient at it. Civil liberties can be a real hindrance.

Incidentally, the HIC released its memo to Congress after FISA was reauthorized. HIC Republicans favored that reauthorization, despite what they have alleged about nefarious activities before the FISC. Their memo might have changed some votes. Anybody think the timing was a coincidence?

The FISC enables the government to end run Americans’ Fourth Amendment rights. The HIC memo is a tree, FISA’s destruction of civil liberties the forest. Investigations, possibly indictments, trials, and convictions, will grind on for years and provide plenty of grist for plenty of commentators’ mills. The investigations will eventually wind down, but FISA may be forever. Comey and the Clintons might be in jail, but we all could be, based on evidence obtained without probable cause via general warrants, the government’s data gathering rubber-stamped by its kangaroo court.

As for the HIC’s memo, it’s a fine piece of legal craftsmanship, although it’s not a legal document per se. It confines itself to one matter: the DOJ and FBI’s request for a probable cause order—and three subsequent renewals—authorizing electronic surveillance of Trump campaign volunteer advisor Carter Page.

In the understated, cautious style that is the hallmark of competent legal investigatory work, the memo makes a prima facie case that certain individuals broke various laws. While the evidence underlying conclusions about various DOJ and FBI officials’ misrepresentations and omissions to the FISC, their biases, and ties to Fusion GPS has not been made public, there is almost certainly an ample evidentiary basis for those conclusions.

That evidence, the Democrats’ “counter-memo” and their evidence, and the FISA application and renewals should all be released to the public. The classified information isn’t protecting vital state secrets; it’s protecting officials from embarrassment and possible criminal charges. The American people are smarter and more honorable than those arguing for continuing secrecy; they can handle the truth.

It’s been claimed that the HIC memo plays into Russia’s or Putin’s hands, or that US intelligence capabilities have been or could be irreparably damaged if information was released, without explaining how those consequences could flow. An unfortunate aspect of the American establishment is that it seals itself off from hostile questions in adversarial settings. Never underestimate the power of a question. It would only take one or two to demonstrate that intelligence flunkies, Adam Schiff, Nancy Pelosi, John McCain, and a host of media commentators are either lying through their teeth or have no idea what they’re talking about.

Speaking of big issues, the biggest issue of them all, unsustainable global debt, made an unbidden appearance last week as bond yields broke long-term trend lines to the upside and stocks gave way to the downside. Possible subversion of a duly elected president and even FISA’s evisceration of the Fourth Amendment may amount to playing on the beach as the tsunami rolls in. You can’t do much about what’s going on in Washington. For the tsunami, on the other hand, you can move to higher ground if you have not already done so.