FISA Court Orders FBI To Start Cleaning Up Its Carter Page Surveillance Mess

from the fool-me-a-dozen-or-more-times,-here's-another-angry-court-order dept

The FBI’s abuse of its surveillance powers in the Carter Page investigation — uncovered by the Inspector General — is now being addressed by the FISA court. The FISA court is often considered to be a rubber stamp for government applications — only very rarely rejecting the government’s national security advances.

Some of this is due to deference the government very definitely hasn’t earned. But some of this is due to the FISA court flying blind. The government still keeps secrets from the nation’s most secretive court and judges are forced to accept its assertions because they don’t possess the information needed to push back against the government’s claims.

The Inspector General’s report highlighted more abuses by the FBI during its investigation of former Trump campaign advisor, Carter Page. The IG found the FBI had omitted info that likely would have seen its applications denied, most notably knowledge it had obtained from its sources that Carter Page most likely wasn’t acting as an agent of a foreign power.

The first application made to the court in October 2016 was probably legitimate. The other two applications seeking to continue surveillance of Page weren’t. Had the FBI been honest in its applications, the two extensions would likely have been rejected by the FISA court.

With this info in hand, the FISA court is moving forward with another attempt to keep the FBI from abusing its national security privileges. We’ll see if it works. So far, nothing has permanently prevented any agency with access to the FISA court from abusing its surveillance powers.

The corrective actions began with a December 2019 order that demanded the FBI identify any other matters before the court that involved FBI lawyer Kevin Clinesmith. Clinesmith altered an email from another US government agency to hide the fact that Page was a government source for this agency. The FBI lawyer has since resigned and been referred to the DOJ for criminal charges.

The latest order [PDF] is another rarity for the FISA court, but sketchy times call for greater transparency. If the FBI doesn’t want its dirty laundry aired publicly by the secret court, perhaps it shouldn’t create so much of it. Very few orders have been released by the FISA court without a (regular) court battle, so the FISA court’s proactiveness is still very much an anomaly.

The order makes more demands of the FBI. The court wants to know how the agency is going to make things right. In reference to the Carter Page surveillance applications, the court demands the FBI to explain how it’s going to “sequester” everything the FBI collected on/from Carter Page using its bogus applications.

It also wants a detailed description of what the FBI/DOJ is doing to restrict access to unminimized US person info gathered during the Carter Page investigation, as well any restrictions it has placed on access/dissemination of info on Page it never should have collected, much less distributed in the first place.

The Intelligence Community’s string of surveillance abuses remains unbroken. Because the FISA court is only barely adversarial, the government is able to run its bullshit pretty much uncontested. Once again, it took outside help — namely, the Inspector General’s office — to show the court what the FBI was really doing. The only question is how often the court is willing to get burnt by its untrustworthy patrons.

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Comments on “FISA Court Orders FBI To Start Cleaning Up Its Carter Page Surveillance Mess”

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Koby (profile) says:


It is my understanding that the FISA court is kind of upset at this episode. They believed that as long as the FBI was honest, then the FISA court could make accurate determinations without an adversarial system. But now that has shown to be false. Until there is someone actually watching the FBI, and also issuing punishment for lying to the court, the dishonesty will sadly continue.

Tanner Andrews (profile) says:

the kid is far too trusting

Had the FBI been honest in its applications, the two extensions would likely have been rejected by the FISA court.

A nice bald assertion, but woefully short of supporting evidence. The FISA court, to the extent we can deem it a court though it be outside of Article 3, shows stunning deference to the agencies applying for permission.

It can do this because there are no real checks and balances. The affected persons have no notice, nor any opportunity to be heard. And on the remarkably rare occasion where it does turn down an application, it is reversed by the far less known FISA appeals court, in cases with enlightening names like “in Re: sealed application”. Again, the affected parties have neither notice nor opportunity.

Calling it a "kangaroo court" would be an insult to Australians. And calling it a "court" is an insult to real courts across the land.

[Who came up with the idea for this "markdown" stuff that mangles real quotes, anyway?]

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