December 16, 2019

Who Is Missing In Action After IG Horowitz’s FISA Abuse Findings? The FISA Court.

The most important voice regarding the extensive Foreign Intelligence Surveillance Application (FISA) abuse revealed by Department of Justice Inspector General Michael Horowitz is missing in action. It’s the very secretive Foreign Intelligence Surveillance Court.

The court was founded in 1978, under the enactment of the U.S. Foreign Intelligence Surveillance Act. It was created to authorize the “most intrusive surveillance techniques modern technology allows” and many contend it conflicts with the basic tenants of the Fourth Amendment, noted criminal defense and civil rights attorney David Schoen.

The FISA court power is so great that many civil libertarians and lawmakers have called for it to be either dismantled or completely reformed. Those calls to reform or end the FISA court have grown greater since Horowitz released his 435 page report this week, revealing 17 gross violations, which included withholding exculpatory information, altering documents and basically lying to the court happened in the case of Trump foreign policy campaign advisor Carter Page.

Those violations against Page were initiated by former FBI Director James Comey’s Crossfire Hurricane Team and Horowitz’s scathing report on the team was reminiscent of the J. Edgar Hoover era, where the bureau’s spying on American citizens was rampant.

Page’s life was turned upside down when the Crossfire Hurricane team. Other FBI agents and sources associated with the FISA against Page, leaked erroneous stories about the Trump campaign volunteer to the media, in an effort to create a narrative that the Trump campaign conspired with Russia. It, of course, was all based on a foundation of lies.

What has been missing say civil libertarians and legal scholars is accountability at the court level. In March, 2020 FISA will be back up for reauthorization. It is expected to face scrutiny from both Republicans and Democrats with the intelligence community lobbying for its necessity in the war against terror and enemy state actors.

However, with the IG report making clear that the system was abused to surveil Page. The bigger question is was Page the only one? Or is Page one of possibly many that had their rights abused or were used to weaponize the system against opponents by federal authorities.

The next step, should be a full investigation of FISA applications submitted to the court. It must be a deep dive into what appears to be incredible malfeasance by the FBI.

“The Court itself has been far too silent,” said Schoen. “What action will it now take, given the IG’s finding concerning the abuses of the process that occurred here. There is a FISA Court of Review that also was created in 1978 and it was created expressly to review the actions of the lower FISA Court.  The Court has the power on its own to convene hearings into the violation of its rules and to take actions against transgressors. But will it take action, remains the question.

Horowitz identified in his report, 51 Woods procedure violations from the FISA application that was submitted from the FBI on Page beginning in October 2016.

“Supporting document shows that the factual assertion is inaccurate,” said the Horowitz report regarding nine of the violations. Basically, the FBI lied nine times to the court in the applications to get permission to spy on Page.

Ranking member of the House Intelligence Committee Devin Nunes, R-CA, warned that the breach of trust with the American people is so great that the FISA court’s very survival is in peril if the Justice’s don’t take action soon.

“They ran people into Trump campaign officials over and over and over again and so when you hear [former FBI director] James Comey talk about his mosaic, that’s what it was,” Nunes told Fox News. “It was the Democrats’ dirt followed by fake news, followed by spies that they ran against Trump campaign officials and then they decided, even though there was exculpatory evidence, not to turn it over to the [FISA] court.”

“The FISA court has to either be shut down in its entirety or they have to take action and soon, ” Nunes added.

Glenn Greenwald, with The Intercept, put it this way for those who believe that there was no wrongdoing by FBI officials in their quest to target the Trump campaign.

“In this case, no rational person should allow standard partisan bickering to distort or hide this severe FBI corruption. The IG Report leaves no doubt about it. It’s brimming with proof of FBI subterfuge and deceit, all in service of persuading a FISA court of something that was not true: that U.S. citizen and former Trump campaign official Carter Page was an agent of the Russian government and therefore needed to have his communications surveilled.” 

Horowitz’s report is clear what the FBI did to Page and its failure to be truthful and candid to the FISC leaves little room for doubt that the bureau’s targeting of the Trump campaign was filled with corruption.

IG Report: “we identified multiple instances in which factual assertions relied upon in the first FISA application were inaccurate, incomplete, or unsupported by appropriate documentation, based upon information the FBI had in its possession at the time the application was filed.”

The court operates in secret and its decisions as to whether to authorize the government to intrude on our most private activities are “based exclusively on representations of facts unilaterally submitted to the court in secret by a government official with an agenda.  The potential for abuse is limited only by one’s imaginations.  It is past time for Congress, working with judicial branch officials and civil libertarians, to reform the process,” Schoen added.

He’s not the only one. Many senior lawmakers are now calling for the FISA court to speak out, and if not for there to be a reformation of the court or have it dismantled all-together.

But there are checks already in place right now in the Court’s Rules of Procedure, all of which were well known the officials who were involved in the Carter Page application and related applications.

“Those checks, however, depend entirely on the integrity of the government officials making the application or supervising those who made them.  In the so-called Russia collusion “investigation” it appears that all involved simply chose to ignore the Court’s rules and have faced no penalty for doing so,” said Schoen.

For example, Rule 13 of the FISC Rules “expressly requires the immediate correction of any misstatement or omission of any material fact presented to the court by the government.  The officials involved here simply ignored the court’s rules. They must be held accountable,” he added.

Rule 13. Correction of Misstatement or Omission; Disclosure of Non-Compliance. (a) Correction of Material Facts. If the government discovers that a submission to the Court contained a misstatement or omission of material fact, the government, in writing, must immediately inform the Judge to whom the submission was made of: (1) the misstatement or omission; (2) any necessary correction; (3) the facts and circumstances relevant to the misstatement or omission; ( 4) any modifications the government has made or proposes to make in how it will implement any authority or approval granted by the Court; and (5) how the government proposes to dispose of or treat any information obtained as a result of the misstatement or omission. (b) Disclosure of Non-Compliance. If the government discovers that any authority or approval granted by the Court has been implemented in a manner that did not comply with the Court’s authorization or approval or with applicable law, the government, in writing, must immediately inform the Judge to whom the submission was made of: (1) the non-compliance; (2) the facts and circumstances relevant to the non-compliance; (3) any modifications the government has made or proposes to make in how it will implement any authority or approval granted by the Court; and ( 4) how the government proposes to dispose of or treat any information obtained as a result of the non-compliance.

Share