#Obamagate Raises the Question: Should We Repeal FISA?

Angelo Codevilla says yes. John Guandolo says no.

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.

FISA’s Origins
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.

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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.”

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Also see:

Nunes memo raises question: Did FBI violate Woods Procedures?

Attkisson on New Strzok-Page Texts: What’s in the 5 Months of Messages We Haven’t Seen?

Grassley-Graham Memo: Dossier Author Christopher Steele Lied to FBI, FBI Didn’t Tell FISA Court

The Other Secret Dossier

Latest FBI Texts: ‘Hillbillys,’ ‘OUR Task,’ Obama ‘Wants to Know Everything’

BREAKING: Senate Homeland Committee drops BIG document dump on FBI’s Hillary email investigation [READ THEM HERE]

Exclusive — Rep. Paul Gosar: Obama’s Fast and Furious, Benghazi, IRS Scandals All Connected to DOJ, FBI Corruption in Trump Probe

Outraged About The FISA Court? Maybe You Should Think About Who Is Surveilling You

Breaking: All Contacts On Anthony Weiner’s FBI Confiscated Laptop Leak Including Clinton, Soros, Gore (Updated)

Material Support: An Indispensable Counterterrorism Tool Turns 20

DOJ-sealWar on the Rocks, by JEFF BREINHOLT, April 19, 2016:

A few years back, there were plenty of American conservatives who publicly sneered at the notion that terrorism was anything short of a military problem. We should not treat terrorists as criminals, they argued, because that was somehow soft-headed. The problem with their argument was that it could not tell us how to handle American citizens in the United States who plot to attack the homeland. Gitmo? Not likely, and we cannot call the U.S. Air Force in to bomb Chicago if we find terrorists operating there. Kinetic options simply do not exist for certain American counterterrorism situations.

We need the U.S. criminal justice system to be able to handle terrorists because terrorists are sometimes Americans, who sometimes operate domestically, even if they are taking orders or inspiration from abroad. Fortunately 20 years ago today, the United States revolutionized this capability. The Antiterrorism and Effective Death Penalty Act (AEDPA) was enacted on April 19, 1996 to coincide with the one-year anniversary of the Oklahoma City attack. It contained two key international terrorism provisions that were buried in one of those now-controversial Clinton crime bills. It amended the U.S. Criminal Code to add the following provision:

§ 2339B. Providing material support or resources to designated foreign terrorist organizations

(a) Prohibited activities. –

(1) Unlawful conduct. – Whoever, within the United States or subject to the jurisdiction of the United States, knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 10 years, or both. …

Meanwhile, the AEDPA amended the Immigration and National Act to create a system in which the State Department officially designates, for all the world to see, a list of subnational foreign terrorist organizations that meet the definition of “foreign terrorist organization” (FTO).

I took more than a passing interest in these provisions. I joined what was then known as the Terrorism and Violent Crime Section at the Department of Justice in March 1997, and became part of a small group of prosecutors looking at how to make terrorist financing cases. I eventually was placed in charge of the unit of lawyers dedicated to making “material support” cases. Our focus was on United States-based fundraisers for FTOs, which is to say white collar criminals.

It took some time for these provisions to gain some traction. For one, they did not become fully operational until October 8, 1997, when Secretary Albright publicly announced the first round of FTOs, consisting of 29 groups. Even then and despite our best efforts, we did not see many prosecutions. The Department of Justice obtained charges against a group of Mujahedeen-e-Khalq (MEK) financial supporters in Los Angeles, but this prosecution quickly got bogged down in pre-trial constitutional litigation. In Michigan, prosecutors obtained an indictment of a Hizballah procurement officer, but he quickly disappeared across the Windsor Bridge.

Unfortunately, it took 9/11 to shake us out of our inaction. The USA PATRIOT Act’s two most important provisions finally permitted the full sharing of information between agents involved in intelligence operations and their counterparts on the law enforcement side; these limits were previously believed to be necessary to protect ongoing surveillance authorized by the Foreign Intelligence Surveillance Act (FISA). When terrorism prosecutors first saw the type of intelligence the FBI had been collecting on U.S.-based terrorist operatives, there was dancing in the halls of Main Justice. “Material support” prosecutions began to proliferate. Terrorism prosecutors finally had something to put their teeth into. Suddenly, there was an end-game to the FBI’s spadework.

Something else happened around that time: the U.S. military overran a Taliban camp in Afghanistan and, in the process, detained a young American named John Walker Lindh. We quickly realized that he could not be charged with the most obvious crime — treason — because the U.S. Constitution required two witnesses to each of his treasonous acts. Instead, prosecutors obtained an indictment against him under § 2339B, based on the theory that he was attempting to provide “personnel” (his own body) to al Qaeda, an FTO.

At the time, it was far from clear that “personnel” within the definition of “material support or resources” included one’s own person. Lindh’s family got good lawyers who traveled from California to Virginia and filed a motion to dismiss, which argued that “personnel” did not include one’s own body. Prosecutors did not have much to say. After all, there was very little in the way of legislative history to inform the question. They resorted to arguing dictionary meanings.

Judge T.S. Ellis III took the matter under advisement. When he returned to the bench, he announced his conclusion that “personnel” within the definition of “material support or resources” did indeed include one’s own person.

This might seem like small potatoes, but it was a watershed event for §2339B enforcement and counterterrorism cases, just as much as the PATRIOT Act information-sharing changes. I remember being stunned at the time, realizing that we might have hit the jackpot. For the first time, American prosecutors could obtain indictments of people who sought to perform services for FTOs, on the theory that they were attempting to provide “personnel.” This development gave us the Lackawanna defendants, the Portland jihad cell, and the Virginia Paintball group. Section 2339B was the closest thing our prosecutors have to specifying the crime of “being a terrorist,” an offense that otherwise does not exist. A few years after the Lindh decision, Congress amended the definition of “material support or resources” to clarify the term “personnel,” which is now defined as “one or more person who may be or include oneself.” Section 2339B became more than just a white collar crime. It could be used to incapacitate bomb-throwers as well.

Where has the “material support” crime taken us in the 20 years it has existed? As noted, §2339B prosecutions began to proliferate after 9/11 and the PATRIOT Act. There have been over 300 individuals charged with “material support crimes,” compared to only a handful before 9/11. That is an amazing trajectory. It is an indispensable counterterrorism tool and one that does not involve the military. The Department of Justice has successfully prosecuted supporters of al Qaada, Hamas, Hizballah, FARC, AUC, al Shabaab, and the Islamic State in Iraq and the Levant (ISIL) for a variety of roles in the terrorist support enterprise. Most new terrorism indictments you read about these days include a “material support” charge. We were assisted by the FBI, which created the Terrorist Financing Operations Section (TFOS) after 9/11.

Today, the American approach to criminalizing terrorism is the envy of our foreign partners. Under the “attempt” provision to §2339B, we can arrest aspiring ISIL foreign fighters before they leave for Turkey, on the theory that they are attempting to provide “personnel” to an FTO. These cases, which are on the rise, typically involve a heavy dose of social media exploitation which allows American prosecutors to argue that the travelers intended to join ISIL, plus an affirmative act — like buying a plane ticket or traveling to the airport. For countries that are grappling with the dilemma of how to stop their nationals from fighting in Syria and coming home as threats, the U.S. “material support” statute is the gold standard. With it, we do not have to wait until Americans are caught on the battlefield in Syria.

Over the last several years, the material support crime has been amended to make it more powerful. In 2004, for example, several bases of extraterritorial jurisdiction were placed in it. Prosecutors can now prosecute § 2339B defendants who have never set foot in the U.S. before their arrest and extradition. Penalties have increased.

Of course, one of the signs that a law enforcement tool is powerful is how many people come out of the woodwork and complain about it. These arguments ultimately went to the Supreme Court, which ruled 6–3 that the material support regime was constitutional.

So here we are, 20 years later. Happy Birthday, § 2339B. May there be many happy returns.

Jeff Breinholt is an attorney in the National Security Division of the U.S. Department of Justice in Washington, DC. He is a member of the State Bar of California. The views expressed in this article are the author’s own and do not necessarily reflect those of the Department of Justice or the United States.