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FISA Court Benchslaps FBI For Its Abuse Of The FISA Warrant Process During The Trump Campaign Investigation

from the FBI-finally-uses-up-all-of-its-unearned-trust dept

This didn’t take long. The Inspector General’s report on the FBI’s Trump campaign investigation had nothing positive to say about the FBI other than it sucked at its job. Unbelievably, this was better than the IG saying the FBI performed its job in a biased fashion as part of a concerted Deep State effort to prevent Trump from taking office. (Or from staying in it, I guess, since the prevention plan obviously didn’t work.)

But there was also an aspect of the FBI’s investigation that should probably be chalked up to malice, rather than stupidity: the FISA warrant process. The FBI was so very determined to keep campaign advisor Carter Page under surveillance it cherry-picked statements from cooperators and buried everything that might have suggested Page was not actually involved in a Trump-Russia conspiracy.

The Inspector General said the FBI’s FISA affidavit process was so full of failure, the office would be performin an audit of the FBI’s FISA application processes and procedures. That’s still in the works. Until then, there’s the FISA court itself, which is incredibly peeved by these findings.

An order issued December 17 by FISA judge Rosemary Collyer was released publicly — something the FISA court rarely does without allowing the IC to perform a few rounds of declassification vetting first. Charlie Savage of the New York Times was the first to report on the order [non-paywalled link here], but the order [PDF] does a pretty good job of speaking for itself.

The order opens by making it clear Judge Collyer is incredibly unhappy with the FBI’s behavior, as uncovered by the IG’s investigation.

This order responds to reports that personnel of the Federal Bureau of Investigation (FBI) provided false information to the National Security Division (NSD ) of the Department of Justice, and withheld material information from NSD which was detrimental to the FBI’s case, in connection with four applications to the Foreign Intelligence Surveillance Court (FISC) for authority to conduct electronic surveillance of a U.S. citizen named Carter W. Page. When FBI personnel mislead NSD in the ways described above, they equally mislead the FISC.

After detailing the OIG’s findings, the court delivers its message to the FBI.

The FBI’s handling of the Carter Page applications, as portrayed in the OIG report, was antithetical to the heightened duty of candor described above. 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.

Oof. The FISA Court just said it no longer trusts the FBI.

To earn back this trust, the court has ordered it to deliver a sworn submission that outlines the agency’s efforts to ensure every application going forward will not contain material omissions or otherwise untrustworthy statements. Better, the court orders the FBI to undergo an immediate review of the December 5th order (which demanded the FBI explain the statements [or omissions] made in the Page warrant affidavits) in preparation for it to be released to the public. The last sentence of the order makes it clear any attempts to subject this soon-to-be-declassified order to further convenient omissions won’t be tolerated by the Court.

In view of the information released to the public in the OIG report, the Court expects that such review will entail minimal if any redactions.

How many times must the FISA court benchslap IC members for abusing processes and powers? At least once more apparently. It’s refreshing to see the FBI called out for its misconduct, but the FISA court has been soundly and serially abused for years by multiple agencies who know the real benefit of a non-adversarial system is it minimizes the number of parties capable of calling bullshit.

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Comments on “FISA Court Benchslaps FBI For Its Abuse Of The FISA Warrant Process During The Trump Campaign Investigation”

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18 Comments
Anonymous Coward says:

While it is known that tough cases make bad law and defending rights calls for defending the devil himself there us a disturbing oligarchic pattern. The courts seem to be engaging in very disturbing behavior, routinely ignoring or encouraging abuses when it is "the little people" only when someone important might suffer duely earned consequences consistent with jurisprudence and then suddenly it is a 180. This is worse than a mere "expensive lawyer turns an open and shut case to an acquittal through showmanship and demonstrating enough procedural failings to create reasonable doubt".

On another note any process of a court which allows only a prosecution and expects a standard beyond "bare minimium to proceed presenting only the worst potential evidence and intended more than mostly record keeping" is fundamentally broken.

Anonymous Anonymous Coward (profile) says:

Wrist slap, not bench slap

So when will the FBI, or at least the agents who participated in this latest example of misdeeds (along with their supervisors and managers), be actually punished? Stand in the corner and admit your shameful behavior does not seem much like punishment. Nor does it seem likely to deter future incidents.

Given that the FBI is part and parcel of the process to punish criminals, it should be fair to punish them for like behavior. What they did was actually illegal, and I see no good reason not to treat it, and those responsible, that way. Oh, except that the Justice Department will probably protect its own, which isn’t a good reason.

Anonymous Coward says:

Re: Wrist slap

… so the big tough FISA schoolmarm is making the naughty FBI schoolboys write a little essay about how they won’t fib to her ever again — that will certainly scare the cr@p out of Comey and crowd.
(not)

This is purely a CYA public-relations maneuver by FISA.

If FISA judges were serious amd law-abiding — they would file formal criminal charges against all the FBI persons who signed and submitted the phony warrant applications.

bob says:

trust you?

So the FISA court doesn’t trust the FBI but they want a sworn submission of efforts to fix it? They are saying we don’t trust you but we will trust you if you say you are fixing it with at least some conviction in your answer.

Since the FBI has broken the law multiple times in the past what in the world makes the FISA Court think making a sworn submission is going to change.

Uriel-238 (profile) says:

Only when aristocrats are involved do we care.

The FBI has been cutting corners on its FISA-bound warrant requests for years and no one can be bothered. But when the guy who should never have become president is determined to be getting support from Putin and we only care because it lends (false) credence to the notion the investigation was biased, only suddenly we then care about. Meanwhile President of the United States Donald J. Trump would later all-but-fellate his Russian overlord on video for all of us to see…more than once.

Unless the censure of the FBI is going to allow for review of all prior FBI cases that invoked FISA writs, from the fools they gaslighted into terror stings to the NSLs they keep sending to companies, I am going to fail to be impressed.

The FBI has long been a self-serving political entity, that only now someone notices is conspicuous.

The US really is an aristocracy-serving nation. It’s time we start telling our children the whole by the people thing is bullshit until me force it to become so at swordpoint.

Coyne Tibbets (profile) says:

Benchpat

Benchslap, not hardly. More like a benchpat…on the back.

Her order basically translates to: "Write a hundred word essay then you can read to me with a straight face and then we’ll all pretend the problem is solved."

Said order given to an organization the lies under oath with a straight face every minute of every day.

Toothless. As usual.

Even the last bit…brace for 99.9% blacked out to be described as "minimal redaction."

Bruce C. says:

Tunnel vision at the FBI? Who woulda thunk?

The thing that gets me is how President Trump tries to make this out as some kind of conspiracy against him in particular. The FBI has always played fast and loose with civil rights and rules of evidence as it suited their needs all the way back to the J. Edgar Hoover days. The FBI always got its man because they didn’t let technicalities like truthfulness on a warrant get in their way.

Uriel-238 (profile) says:

Re: President Trump sees it as against him in particular

President Trump sees everything as about him in particular. He can’t recognize things that are about other people but not about him. And he can’t recognize that general effects are not about him.

When it rains on the White House, to President Trump it’s only raining on President Trump.

He is incapable of seeing it any other way.

Pete (profile) says:

FISA court is doing exactly what it was created to do.

The FISA court rubber stamps (a statistical fact) Federal investigator requests. This serves two purposes. 1) Gives the public the false impression that their 4th amendment rights are being protected. 2) Subverts the 4th amendment.

Its 1978 creation was a stroke of genius. What better way to rob citizens of their constitutional right to privacy than to create an agency designed to sign them away under the guise of protecting them.

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