Tuesday, December 17, 2019

UPDATED: FISC Order In View Of OIG FISA Report Findings

Today the Foreign Intelligence Surveillance Court (FISC) issued a rare public order in response to OIG's FISA report which detailed FBI bad behavior in submitting FISA applications with regard to Carter Page. The actual title of the FISC order is:


The order begins with a brief explanation of FISC procedures, as established by FISA. Follow the link if you get off on that kind of stuff.

Likely the most interesting aspect of the order comes in the concluding paragraphs, in which the FISC addresses the specific topic of disgraced FBI attorney Kevin Clinesmith's bad, i.e., criminal, behavior. The FISC, in essence, states that any application that Clinesmith worked on must now be regarded as suspect and notes that on December 5, 2019, the FISC ordered the FBI to "provide certain information" regarding applications handled by Clinesmith. The FISC intends to publish that December 5 order and gives the FBI until December 20 to submit suggested redactions--while noting that

In view of the information released to the public in the OIG Report, the Court expects that such review will entail minimal if any redactions.

Below are the concluding paragraphs that also contains the expected highminded language about the FBI doing things to make sure this never happens again and telling the FISC what those things are. IMO, the relevant Congressional committees should invite CJ John Roberts to offer any views he may have on the subject of FISA generally and the FISC in particular. Since the FISC is a creation of Congress it's hard to see what Roberts could actually do with this mess--short of declaring the FISC unconstitutional and refusing to appoint judges to participate in it.

In addition, while the fourth electronic surveillance application for Mr. Page was being prepared, an attorney in the FBI's Office of General Counsel (OGC) [Kevin Clinesmith] engaged in conduct that apparently was intended to mislead the FBI agent who ultimately swore to the facts in that application about whether Mr. Page had been a source of another government agency. See id. at 252-56. The information about the OGC attorney's conduct in the OIG report is consistent with classified submissions made to the FISC by the government on October 25, 2019, and November 27, 2019. Because the conduct of the OGC attorney [Kevin Clinesmith] gave rise to serious concerns about the accuracy and completeness of the information provided to the FISC in any matter in which the OGC attorney was involved, the Court ordered the government on December 5, 2019, to, among other things, provide certain information addressing those concerns.
The FBI's handling of the Carter Page applications, as portrayed in the OIG report, was antithetical to the heightened duty of candor described above. The frequency with which representations made by FBI personnel turned out to be unsupported or contradicted by information in their possession, and with which they withheld information detrimental to their case, calls into question whether information contained in other FBI applications is reliable. The FISC expects the government to provide complete and accurate information in every filing with the Court. Without it, the FISC cannot properly ensure that the government conducts electronic surveillance for foreign intelligence purposes only when there is a sufficient factual basis.
THEREFORE, the Court ORDERS that the government shall, no later than January 10, 2020, inform the Court in a sworn written submission of what it has done, and plans to do, to ensure that the statement of facts in each FBI application accurately and completely reflects information possessed by the FBI that is material to any issue presented by the application. In the event that the FBI at the time of that submission is not yet able to perform any of the planned steps described in the submission, it shall also include (a) a proposed timetable for implementing such measures and (b) an explanation of why, in the government's view, the information in FBI applications submitted in the interim should be regarded as reliable.
IT IS FURTHER ORDERED, pursuant to FISC Rule of Procedure 62(a), that the government shall, no later than December 20, 2019, complete a declassification review of the above-referenced order of December 5, 2019, in anticipation of the FISC's publishing that order. In view of the information released to the public in the OIG Report, the Court expects that such review will entail minimal if any redactions.

UPDATE 1: Devin Nunes speaks about FISA and the FISC. At about the 1:20 mark the discussion turns to the FISC and at about 3:20 Nunes says they need to "end" the FISC. He then goes on to say "we need a process," but without offering specifics. This is the debate that I referred to last week in FISA: Reform Or Abolish? citing the views of Robert Bork and Angelo Codevilla. I personally doubt that FISA gets abolished, because it protects the Deep State:

UPDATE 2: Did it really take the Horowitz Dossier for the FBI to figure out what happened in 2016? I guess that would have to be Chris Wray's position at this point:


  1. Not surprised to find the FISC judge doesn't hold anybody accountable. Just "the Court ORDERS" more paperwork. And "the Court expects" whatever. The Court sounds like a bar-tender at a party of drunken teenagers & hookers who doesn't want to lose his bar-tending license. What a joke.

    1. In fairness, there's not much a court can do to address government misconduct, since they're all separate and equal branches. Which is why I wrote what I did re Roberts.

    2. Essentially, the FISC order is demanding a "preventive action plan" from DOJ so this never happens again.

      That does not preclude a separate order from FISC at a later date addressing specific wrongdoing by individuals who perpetrated this fraud on the court.

      They could recommend specific criminal referrals to DOJ, for example, though they may not be able to force them to prosecute.

      As an aside, somebody else today pointed out the Woods procedure was created as a remedy for a previous instance when FISC was presented with a FISA warrant application in which the information in the warrant had NOT been verified by FBI/DOJ before submission. Lot of good it did, eh?

      The point is that simply demanding new procedures doesn't stop the misbehavior in SIM cases, which are handled by the highest level of management at FBI. The problem is that no procedure in the world prevents a politically motivated management team from promoting similarly politically motivated workers into these HQ positions, where they can simply feign ignorance for the proper procedures when it suits them, and they get caught.

      Adding an audit function reporting to anyone inside FBI doesn't help, either, because they will get co-opted eventually by the same political bias, when auditors realize that promotions and salary increases are contingent on them "getting with the program." Same problem having it report to DOJ, even the AG.

      What they need are organizationally independent audits of compliance with the sufficient procedures to assure this crap never happens. The audit function HAS to report to somebody other than the people ultimately responsible for complying with the procedures being audited; anything else creates a conflict of interest.

      (The foregoing is informed by my role creating an audit function for DoD contractor compliance with contractually mandated Quality Standards.)

      One possible solution -- which DOJ will hate: give control of the audit function to the FISC, and give them the authority to look at anything they need to see anytime they want to see it.

      Better still, have it report to the CJ of the SCOTUS. That would give it the independence it requires so as to not get co-opted by the Deep State gil-breathing swamp creatures.

    3. Just what the FBI needed a sternly written letter. That will fix them.

    4. The pen is mightier than the sword. Well, let me qualify that.

    5. EZ:

      "They could recommend specific criminal referrals to DOJ, for example, though they may not be able to force them to prosecute.They could recommend specific criminal referrals to DOJ, for example, though they may not be able to force them to prosecute."

      I would hope that Barr/Durham aren't waiting for the FISC recommendations. They hardly need that.

      Re reforms, I recommend FISA: Reform Or Abolish?

  2. I'm going off thread again...can't help myself...

    When the trial of Donald Trump in the United States Senate commences, Senators Klobuchar, Booker, Warren and Sanders will sit in judgment. Shouldn't they recuse themselves since their participation in a trial of a political opponent is impermissable interference in an election for personal gain...


    Seems logical to me.

    --Lewis Carroll

    1. Did you see that impeached and removed former federal judge Alcee Hastings is helping write the rules for impeachment in the House?

    2. Its a good thing the 31 Democrat moderates in the House can count on top Dem leadership for truth and honesty in the impeachment process, because they have a track record of truth and honesty...

      January 2018

      Adam Schiff:
      The Nunes memo is a "profoundly misleading set of talking points drafted by Republican staff attacking the FBI and its handling of the investigation."

      Far from ‘omitting’ material facts about Steele, as the Majority claims, DOJ repeatedly informed the Court about Steele’s background, credibility, and potential bias.

      The FBI conducted a “rigorous process” to vet Steele’s allegations, and the Page FISA application explained the FBI’s reasonable basis for finding Steele credible.

      Nancy Pelosi:
      The Nunes memo is a “bogus” document.

      Chuck Schumer:
      The memo was intended to “sow conspiracy theories and attack the integrity of federal law enforcement.”

      December 2019

      Michael Horowitz:
      We identified at least 17 significant errors or omissions in the Carter Page FISA applications, and many additional errors in the Woods Procedures.

    3. Nunes Vindicated should be the headline, but we have a totally partisan press.

    4. It would be cool to know of a site, which has a compendium of such juicy quotes, about DJT / Russian hacking / Nunes Memo.
      And, a list of any forthright retractions, by any of the brats who puked these words out. (I presume that no such retractions were ever issued.)

    5. Yes, although Paul Sperry's twitter feed has quite a few.

  3. Maybe important to recall that we've seen this same show before. Twice. Prior "reforms" clearly were insufficient to prevent abuse of this Constitutionally-dubious "authority" granted to the FBI. Indeed, is there power the FBI has not abused?

    1. When there's power without true accountability, it will be abused. As Bork and Codevilla make clear, FISA was intended to protect investigators, not citizens.

  4. Paul Sperry:

    --->REWIND: On Jan. 29, 2018, FBI Dir Chris Wray issued a statement rebutting the Nunes Memo on FISA abuses & warning Trump not to declassify or release it, citing "grave concerns" with inaccuracies & omissions in the memo.

    Now we know Wray, too, was lying

    1. Yeah, I saw that yesterday and was wondering whether to stick that in. Probably better late than never. A salutary reminder.

  5. Nadler February 2018 (per P Sperry):

    1. Carter Page conspired with the Kremlin during the 2016 election and the FBI was justified in spying on him.

    2. Page was, more likely than not, an agent of a foreign power.

    3. The Russian government waged a massive campaign to discredit our election. Carter Page appears to have played a role in that effort.

    4. The Steele Dossier did not play a substantial role in supporting warrants to spy on Page.

    5. Nunes was lying about what he had read in the classified applications and supporting documents.

    6. I have had the benefit of reading the materials that form the basis for the Nunes Memo.

    7. Nunes’ condemnation of the FISA warrants was “embarrassingly flawed,” a “disgrace,” and “deeply misleading."

  6. One possible fix would be to require everyone who handles the evidence that goes into a warrant application to sign their f*****g names attesting that they have included everything, both culpatory and exculpatory. What we saw with the IG report was that everyone who signed the applications as affiants that Horowitz interviewed claimed that they were depending on the honesty of the people who prepared the application, and the people who prepared the application claimed they depended on the agents and lawyers who were in the Crossfire Hurricane team, and those agents and lawyers who were in Crossfire Hurricane and, later, the Mueller Inquisition, played dumb and said they couldn't explain how the mistakes happened.

    Having all these idiots signing stuff with no actual knowledge about what it is they were signing, and then passing the buck to people who play dumb is no real process at all other than a universal ass covering one.

    1. I believe the rationale for the current procedure was that quality control of applications required the highly trained professionals at HQ, and to prevent inadequate submissions from being presented and rejected. So everything gets funneled through that choke point and the case agents in the field are only involved in that they submit stuff.

      Bork and Codevilla knew better.

  7. FISA must go away. Human nature dictates this iron clad rule: a secret court, no matter the perceived threat, will inevitably morph into a Star Chamber power-tool. This is antithetical to a republic based upon the concept of the sovereignty of the citizen. The two cannot coexist and therefore won't.
    Tom S.

    1. That would mean the end of the National Security State--at least as we've known it. That's why Trump needs to win back the House.

    2. We have far too many State secrets. Most exist strictly to cover someone's ass. As an example: this morning I read an article in the Washington Examiner by Tom Rogan concerning U.S. military interest in UAP's. He ends it by explaining that this is all kept secret because a) some other foreign power might put their data with our data and derive a technological edge, and b) the public might lose confidence in the military, i.e. the government, to protect them. That is all merely bureaucratic weasel talk for, "This may make us look bad/incompetent so we'll make it secret and cover our ass." Fully 90% of everything that is classified is, in reality, just cover-my-ass material.
      Tom S.

    3. That's why I keep quoting Sir Humphrey Applebee: "We have the Official Secrets Act to protect officials--not secrets!"

      We see that over and over with the "redacted" portions of these released docs. Even when there's a legal reason--restrictions on releasing non-SES names, etc.--it's not about secrets it's about protecting officials.

      CYA covers the entire first chapter of Bureaucracy 101.

  8. The National Security State has been around since the inception of the FBI. J. Hoover made it so.

    After WWII, it got became more so.

    In the late 1970s, with the creation of FISA. even more.

    The Patriot Act made it real. Looking at lists of library books people checked was a result, to use a common critique of it. The reality is much worse. This also was the start of the National Security State fighting back at US President, at least publicly and unapologetically.

    Obama furthered grew it and made it so raw he intel could be shared all around. It should be noted the National Security State had no public issues with Obama.

    So, here we are, the US government, fighting the will of the people as excercised via the Constitution.

    1. I disagree. There's a lot more to be said about Hoover than most people understand. For example, he took a courageous stand against the internment of the Japanese Americans during WW2, calling it "utterly unwarranted." He was also a strong voice for progessionalism and adherence to the constitution in law enforcement.

      FISA, in my mind, with its creation of a secret court, marks the true beginning--for many reasons. It marks the beginning of a new political alliance between the legislative branch and the national security agencies which, yes, was put on steroids by Bush and his Patriot Act.

    2. I understand, but he, before becoming director of what was to become the FBI, helped direct the roundup and deportation of suspected German, Italian, Irish, and other communists and amarchists after WWI.

      President Wilson warned the public about hyphenated Americans. Hoover to it to heart.

      This does not mean the threat was false, but it does mean that in America, if you held anti-US government views, you were watched.

      Yes. the National Surveillance State became official with FISA/FISC, but was in successful operation long before 1978.

      Note Martin Luther King Jr as evidence.

    3. In my book Wilson was one of the biggest villains in US history.

      FISA didn't take the "National Surveillance State" to another level--it radically changed it. Read what Bork and Codevilla say about it.