Jail the Guilty, Repeal FISA, at American Greatness by Angelo Codevilla, February 6, 2018
The House Intelligence Committee’s summary memo of highly classified FBI and Justice Department documents confirms what has been public knowledge for over a year: Some of America’s highest officials used U.S. intelligence’s most intrusive espionage tools to attempt to interfere in the 2016 presidential election, and then to cripple Donald Trump politically. Being of one mind with the rest of the Obama Administration and Hillary Clinton’s presidential campaign, these officials acted symbiotically and seamlessly with them, regardless of any cooperation that may have existed.
The party-in-power’s use of government espionage to thwart the opposition violates the Fourth Amendment and sets a ruinous precedent. Having done so under color of law—specifically, the 1978 Foreign Intelligence Surveillance Act (FISA)—makes it a lot worse.
Unfortunately, the summary memo—to say nothing of the Democrats’ and their kept media’s reaction to it—focuses largely on whether the FBI and Justice Department dotted the i’s and crossed the t’s as they obtained a warrant from the FISA court to do the spying. This misrepresents high crimes as merely technical violations. Worse, it risks leaving in place a law under which those in charge of the government may violate the basic tenets of American political life with reasonable hope of impunity.
Prior to FISA, American intelligence agencies had done national security electronic surveillance under the president’s power as commander in chief of the armed forces. The president and his agents were responsible for doing it properly. I was part of the Senate Intelligence Committee staff that drafted FISA in 1978. The legislation was meant to answer complaints from leftists who sued the FBI and the National Security Agency after learning they had been overheard working against the United States during the Vietnam War. They wanted to extend the principle that no one may be surveilled without a court order to Americans in contact with foreigners.
But the main push for FISA, in fact, came from the FBI and NSA. Wishing to preclude further lawsuits, the agencies issued Congress an ultimatum: no more national security wiretaps unless each tap has the approval of a judge (thus absolving them of responsibility). FISA established a court to review warrant applications for national security electronic surveillance, in secret and without contrary argument. It commanded the agencies to observe procedural safeguards for the Americans involved.
I opposed FISA as a Senate staffer. I also argued against the legislation in an American Bar Association debate with Antonin Scalia, who was a professor at the University of Chicago Law School at the time. My view then and now is that the FISA court creates an irresistible temptation to political abuse and that officials would interpret any procedural safeguards accordingly.
The Memo Reveals a Bigger Problem
In what is arguably the key passage of the Nunes memo, the committee states:
Neither the initial application [for surveillance of the Trump campaign] in October 2016, nor any of the renewals, disclose or reference the role of the DNC, Clinton campaign, or any party/campaign in funding Steele’s efforts, even though the political origins of the Steele dossier [which was a basis for the application] were then known to senior DOJ and FBI officials.
If that’s true, then the officials who signed the applications—including FBI Director James Comey, Deputy Director Andrew McCabe, acting Attorney General Sally Yates, then-acting Attorney General Dana Boente, and then-acting Attorney General Rod Rosenstein—are guilty of misrepresenting material facts to a federal court. All of them belong in the slammer—for at least a little while.
And at some level, they know this. Hence the public relations campaign to downplay the crime. For example, the New York Times on February 2 quoted David Kris, who served as President Obama’s head of the Justice Department’s National Security Division. According to Kris, if the FISA application merely told the court that “Mr. Steele’s research was motivated to undermine Mr. Trump’s campaign,” then “the FISA application would be fine.” Note well what narrow distinction, subject to a wide latitude of interpretation, supposedly separates a high crime from “that’s fine” under the law.
But the FISA court’s procedures and requirements—inherently subject to self-interested interpretation as they are—are of far less importance than the fact that FISA was a big mistake to begin with. The law removed responsibility for the substance of executive judgment from the shoulders of the very people who make such judgments.
Today, Comey, Rosenstein, and others may well believe their own claims that they were merely turning government’s neutral wheels and that the judges would judge. Nonsense. They decided to become partisans in the 2016 presidential campaign because they were as convinced as were countless others of their class that they had the right and the duty to protect America (and their place in it) from unworthy challengers.
Perhaps only their failure to dot the i’s and cross the t’s may make it possible for them to be jailed for their crime. But because their successors may be similarly motivated and more careful, it behooves us to erase doubt about who is responsible for electronic surveillance by repealing FISA.
FISA is a Constitutional & Needed Weapon in This War, by John Guandolo, Feb. 4, 2018:
With news full of reports about the fraudulent dossier used to obtain the FISA warrant to intercept communications of Carter Paige and the release of the memo last week, the following is provided to UTT readers to help them understand what it takes to obtain a FISA warrant, that FISA is constitutional, and that FISA is needed for the national security of America.
F.I.S.A. stands for the Foreign Intelligence and Surveillance Act, and was legislated by the U.S. Congress in 1978 to ensure American citizens were protected from overzealous government intrusion into their privacy in the name of “national security.”
The FISA Court provides a means for the U.S. government to collect on subjects of sensitive/classified investigations (counterintelligence and terrorism for example) without endangering sources and means of the investigation.
FISA judges are federal judges who have been confirmed by the U.S. Senate and chosen by the Chief Justice of the U.S. Supreme Court.
Understanding the Threat’s President John Guandolo served as a Supervisor in the Counterterrorism Division at FBI Headquarters during his career in the FBI. In that capacity, he was the affiant – one who swears to the veracity of an affidavit – in support of numerous FISA warrants.
When an FBI agent in the field needs a FISA warrant, he/she contacts their supervisor at FBI headquarters who acts as the affiant for the warrant. The two work through the affidavit, sometimes over 100 pages long, until the FBIHQ Supervisor is satisfied the legal standard of Probable Cause is met and the facts are verified.
The FBIHQ supervisor works with a Department of Justice attorney, and the cover sheet for the affidavit must be signed off by a DOJ official. The affidavit is also reviewed and signed off by the FBI Director or Deputy Director.
It is not unusual for the FBI supervisor and DOJ attorney to meet with the FBI Director over a weekend at his home while the Director reviews the affidavit, asks questions, and is satisfied the affidavit can go to the judge.
Then the FBI supervisor and DOJ attorney sit before the FISA judge who reads the affidavit and asks questions. When the judge signs the affidavit, the technical process begins to intercept the subject of the investigation.
This entire process is legal, constitutional and an important tool in the national security toolbox for dedicated servants inside the government.
In the current case before us, FBI and Department of Justice leaders put forth an affidavit that – as the memo released last week makes clear – was fraudulent and the FBI knew it. The dossier from Christopher Steele was fabricated and purchased by Hillary Clinton/DNC, and yet this information was not provided to the FISA judge during the initial application for the FISA warrant nor at any of the three times when the warrant was renewed.
In a vacuum, these actions are violations of federal law. At a minimum, this is perjury and tampering with a federal election by those involved.
But it is much worse than that.
Robert Mueller’s investigation was predicated on a request for Special Counsel which did not allege any crime. The FISA warrant for Paige was predicated on lies using a source known by the FBI to lack credibility (Steele).
In reality, these actions – efforts to tamper with a federal election and, now, undermine and overthrow a duly elected President of the United States – constitutes “Sedition.”