Wednesday, February 28, 2018

UPDATED: What's The Reality Of How The Fisa Process Normally Works?

In my various blogs on this subject I've been highly critical of the FISA Court's handling of the Carter Page FISA application--and rightly so, as I continue to believe. Therefore, the brief part of the linked blog that particularly caught my eye was this paragraph:

Mr. DOJ stated that he prepared and presented FISA applications to the FISA Court. The reason that the rate of applications approved is so high is because the standards are so high with the court. Mr. DOJ knows that applications have to be well written and cover all the bases before being provided to the court. He reviewed applications for a time and was responsible for reviewing them. They had to be perfect when they went to the court. When the FISA applications were sent to the FISA Court to spy on President Trump, the fact that any information was omitted or hidden from the court, was a criminal act.

I have no desire to defend criminal conduct, and that's exactly what I've seen in this outrageous affair all along. With that said, however, I will state that "Mr. DoJ's" characterization of the way FISA applications were treated comports exactly with my own experience. We were always told that we simply couldn't afford to have less than the absolute highest standards of integrity when it came to the preparation of FISA applications. If any doubt in that regard were ever allowed to enter the minds of the FISC judges the results could be disastrous for the effective conduct of our investigations. This was drummed into us whenever the subject of FISA came up.

So, that being the case, a serious question is presented. Was the FISC lulled into a false sense of trust in the integrity of FBI/DoJ representations to the court in their FISA applications precisely because of an excellent track record--because the applications had virtually always lived up to the representations made in them? Did the four judges who handled the original Page application and its renewals perhaps put too much weight on whatever assurances were made to them? As I stated in a comment in the previous thread, we may never know the answer to that question:

Was this case handled any differently than others? It'll be hard to ever determine that, because get a load of this: FISA court responds to Republican leaders' requests for info on Trump aide surveillance:
"Collyer [presiding judge of the FISC] wrote that any such transcripts would be classified and noted that a "typical process of considering an application" would not include a "systematic record of questions we ask or responses the government gives."

UPDATE: In an email this morning I made this remark regarding the lack of a "systematic record" at the FISC:

In the absence of a "systematic record," are we to presume a non-systematic or unsystematic record was kept? It's hard to imagine what a "non-systematic" record would be. Or might it be the case that this is a euphemism for "no record at all?"

Another correspondent informs me that it has been reported that the FISC judges largely leave the vetting of FISA applications to their law clerks. In such a situation one can easily imagine any "questions and responses" taking place in the context of informal discussions between FISC law clerks and DoJ attorneys. Any record keeping might well be "not systematic" or very possibly non-existent.

No doubt much of this can be traced to the anomolous constitutional status of the FISA system itself, and the fact that the FISC doesn't really correspond to any type of court that is authorized under the US Constitution. How to safeguard the rights of US citizens while also ensuring the national security while working within the structure of the Constitution is no easy matter, given the explosion of communicatin technology that we have witnessed in our lifetimes.


  1. Why does everyone seem to treat this episode of criminality as if it's an intellectual parlor game, in which splitting hairs and uncovering nuance is something of a sporting endeavor? This represents gross misconduct and malfeasance at the DoJ and FBI in service to an actual attempted take-down of a presidential candidate and then later, the Office of the President. Where is the pandemic public outrage? Why is the Congress walking on egg shells? Is there no one in DC with sufficient integrity to scream bloody murder? Are we so inured to business-as-usual corruption that no one really cares anymore? How far we have fallen from the quality of character exhibited by the Founders of this great nation.

  2. UNknown, there are a lot of things that could be said about that. One is this ...

    A significant and (in the aggregate) influential portion of this country--the base of the Democrat party--has come to regard the traditional values of Western civilization as either instruments of oppression or enemies of the good life as they see it. As a result they see the rest of their fellow citizens as enemies to be defeated by any means necessary--because the rule of law is one of the core Western values that has been discarded. Much of the rest of this blog tries to deal with those issues in various ways.