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The FISA Court and the FBI

W. Scott Cole

Posted on January 5, 2020 01:27

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I’ve said it before and I’ll probably say it again. Secret courts are not the way to preserve liberty and protect Constitutional rights. The FBI seems to have been working hard to prove me right.

Carter Page. Image by MSNBC (CC by 3.0)

 

Inspector General Michael Horowitz recently submitted to Congress his report on his investigation of the FBI and their use of FISA warrants to spy on President Trump’s past campaign advisor Carter Page. It did no more than highlight the problem with Star Chamber courts, which is that those courts operate in secret.

Doing everything out of the public eye is begging for abuse of the system, regardless of the reason for the existence of the secret process. The FISA (Foreign Intelligence Surveillance Act) court has been operating for over 40 years. Most Americans didn’t know anything about it, including it’s name, until recently, when it became news that it was used to wrongly obtain warrants to spy on an American citizen.

The IG report detailed 17 errors and omissions in the applications filed by the FBI in order to obtain warrants to surveil Mr. Page. Those errors or omissions concerned information that was unverified or unsupported by the facts, or that was contradicted by other information in the FBI’s possession that they did not see fit to include in their applications.

To its credit, the FISA court came down hard on the FBI for its conduct in this case. I read the court order directed to the FBI and, having read many court orders and rulings over the years, I can say with confidence that I have very seldom seen a court this angry over having the wool pulled over its eyes.

If the words the FISA court used had been directed toward an attorney, that attorney would be seriously thinking about another career.

The problem is that many, even most, of the errors and omissions appear to have been deliberate. This would include an attorney altering documents submitted to the court to make it seem more likely that the FBI's reasoning was valid.

That attorney is now the subject of a criminal investigation.

It doesn’t surprise me that it took so long for problems like this to come to light, since everything a secret court does is, well, secret.

If you ask any officer of the law about how closely they must pay attention to detail in warrant applications, they will tell you that even the smallest mistake means the entire application must be redone and resubmitted, with the officer standing a good chance of having a meeting with the judge in chambers.

A deliberate error or omission means the officer will lose his job.

They will also tell you that the reason for this strictness is that a warrant application is the police asking a court for permission to violate a citizen’s constitutional rights. Judges take that responsibility very seriously.

The question we should be asking right now is: how many American citizens have the FBI done this to over the years?

As the FBI has shown us, secrecy works best when there is no oversight… in the dark, so to speak. The problem is that liberty dies in darkness.

W. Scott Cole

Posted on January 5, 2020 01:27

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