Friday, April 3, 2020

Judge Boasberg Gets Hands-On

Judge James Boasberg is, of course, the Chief Judge of the Foreign Intelligence Surveillance Court (FISC)--the court (if that's the right word for it) to which FISA applications are submitted. On March 31, 2020, DoJ's Inspector General, Michael Horowitz, issued a progress report on his ongoing audit of the FBI's compliance with its so-called Woods procedures, which are supposed to insure that all the facts proffered to the FISC are, well, facts--to the best of anyone's knowledge. Technically speaking the progress report was a DOJ OIG, Management Advisory Memorandum for the Director of the FBI Regarding the Execution of Woods Procedures for Applications Filed with the FISC Relating to US. Persons, but trust me--it was as I just described it.

That progress report raked the FBI over the coals, culminating in Horowitz stating, which I quoted in Does The Latest OIG Rip On The FBI's FISA Problems Matter?:

As a result of our audit work to date and as described below, we do not have confidence that the FBI has executed its Woods Procedures in compliance with FBI policy. Specifically, the Woods Procedures mandate compiling supporting documentation for each fact in the FISA application. Adherence to the Woods Procedures should result in such documentation as a means toward achievement of the FBI’s policy that FISA applications be “scrupulously accurate.”

Basically, OIG revealed that everywhere they looked in FBI files regarding FISA applications they found mistakes, inadequacies, and sometimes gross irregularities. In the latter category, OIG found that in 4 out of 29 applications no Woods file could be located--and in three of those cases the FBI couldn't state that the file had ever existed. Not good.

Judge Boasberg didn't waste any time. Today he issued an order based on OIG's interim findings--IN RE ACCURACY CONCERNS REGARDING FBI MATTERS SUBMITTED TO THE FISC--and he clearly wasn't amused.

The long and the short is that Boasberg intends to keep the FBI on a very short leash. We can skip over most of those details, but the important part--in my opinion--is briefly summarized:

Judge Boasberg is demanding to know the names of the US Persons (USPERs) who were targeted in the 29 FISA applications referred to in the OIG progress report. That means he'll be able to determine whether any action such as prosecution--but not necessarily limited to that--was taken against each target.

Further, he is demanding that the FBI provide him, in a sworn submission, an "assessment" of those 29 applications, explaining 1) whether the misstatements and/or omissions were material and, 2) if so, whether any of the identified material misstatements and/or omissions rendered the relevant applications invalid--in whole or in part.

For reference, here is the exact wording:

(a) assess to what extent those 29 applications involved material misstatements or omissions; and
(b) assess whether any such material misstatements and omissions render invalid, in whole or in part, authorizations granted by the Court for that target in the reviewed docket or other dockets . 

At CTH they're saying that Boasberg is

asking the DOJ to explain what they did with the evidence gathered as a result of the fraudulently obtained FISA warrants.  Big. If evidence obtained by execution of a fraudulently obtained warrant was used in the prosecution of any of those targets; there’s a possibility those cases will be reopened.

I didn't read that in the order. However, that could clearly happen down the line--after the FBI files its "sworn submission." Boasberg could also take such disciplinary action as a judge has against the agents and lawyers involved. But the judge has only limited ability to force such action on DoJ and the FBI.

Nevertheless, in the bigger scheme of things, I believe the importance of this development lies--as I maintained in the previous post, linked above--not in closer oversight by the FISC but in how these actions by OIG and the FISC may affect the renewal of the Patriot Act expansions of FISA. The leadership of House and Senate were unable to deliver on that renewal, despite AG Barr's urging, before recessing (Patriot Act Expansion Of FISA Lapses). They will have to take that up in the coming weeks, and it promises to be a can of worms.

There's no straight line of logic, no syllogistic conclusion that necessarily connects the OIG progress report and Judge Boasberg's order to "FISA renewal" (as it's incorrectly labeled). The point is, however, that Boasberg's order is another black eye for the FBI, another vote of no confidence in the FBI. The only way to read the order is that, like Horowitz at OIG, Boasberg questions whether the FBI is willing or able to comply with the law. He doesn't trust the FBI, and a judicial vote of no confidence will carry weight.

This will be ammunition for those representatives and senators who oppose "clean renewal", especially with regard to NSA's bulk collection of metadata that was spectacularly abused by the FBI during the Obama adminsitration. Opponents of renewal will use these developments to argue that AG Barr's claim that he can remedy these problems with more guidelines is empty. Instead, they will argue that reform and oversight must be hardwired into the process by being enshrined in the actual law, with possible criminal penalties. That will be wormwood for the FBI and DoJ.

This won't be easy for the Intel establishment. I'm not betting against them, but it will be a battle.


  1. Ultimately what needs to happen is Congress taking back power it gave up on this instead of trying to gain new authoritarian powers.

    Yeah, I know, beating a dead horse from the 20th Century.

    1. Actually, Congress never had that power to give to anyone. It was the national security power that always belong to the President as CinC. It's all a bit of a can of worms.

  2. This scrutiny is the consequence of the FBI's stonewalling.

    The day after Comey was fired, the FBI leadership should have begun writing its own frank report to explain this history to the public.

    All investigations and prosecutions of Flynn, Papdopoulos, Page and others should have been terminated.

    The FBI should have declared publicly that it no longer would investigate Facebook advertisers for supposedly meddling in politics.

    If a Special Counselor were appointed by Congress, the FBI should have prevented any FBI officials from joining its staff.

    The FBI needed to make a clean break as fast and publicly as possible from all the political, abusive nonsense. The FBI needed to disassociate itself from Mueller and his Trump-hating gang.

    By stone-walling and by continuing -- for more than two years -- to persecute Flynn, Papadopoulos, Page and other supporters, the FBI has brought upon itself distrust, criticism and investigations that will last for several more years.

    1. And there's nobody gonna feel sorry for them. Great job, guys.

    2. In my above comment, I should have written DOJ/FBI instead of just FBI. DOJ was a big part of the problem.

    3. Correction:

      By stone-walling and by continuing -- for more than two years -- to persecute Flynn, Papadopoulos, Page and other TRUMP supporters, DOJ/FBI has brought upon itself distrust, criticism and investigations that will last for several more years.

    4. Yeah, there's a long way to go yet with house cleaning at those two outfits.

  3. The salience of this order by Boasberg (and the related OIG report) is that it explains Wray's continued stonewalling of oversight investigation. Wray knows that the FBI acted criminally in the RussiaHoax and ensuing coup, but now we know that this criminality was systemic and longstanding and infested field offices as well as HQ. We are way, way beyond malfeasance now and the extent and seriousness of the underlying criminality is a Pandora's Box.

    Wray understands that revelation of this criminality would shake the foundations of the FBI and necessitate a massive corrective response, likely involving mass firings and selective (and serious) prosecutions. Because Wray has neither the personal strength or moral character necessary to remedy this problem, he must continue the stonewalling and hope for a miracle. Hell of a way to run the FBI, but that is the reality we have.

    1. If anything, I'm more pessimistic than you are. Start with the appointment of Wray. That was almost certainly the work of Rosenstein. 'Nuff said?

      But the big problem at the FBI--as throughout the Federal government--is personnel. The FBI used to be an exception among federal agencies, but that hasn't been true for probably the last 20 years. That means the young people it hires reflect the average common denominator of the country's young people. That should scare you. All federal hiring is now controlled by the PC brigade. We can get around that with political appointments and judicial appointments, but the rank and file and the career cadre are all part of the PC brigade--for most intents and purposes--or are afraid to speak out.

      Until that fundamental problem can be addressed--a true cultural transformation--the problem remains. Like a virus waiting to break out when our attention flags.

  4. Why not have an oversight report on FISA apps go to the Prez/congress committees every 6 months? They have shown they are not to be trusted in walking without a leash.

    1. To be honest, I'm not up on what remedies may be under discussion. I suspect that aspect is still fluid. One way or another, it seems to me that more transparency is called for.

    2. And let it be understood that if your FISA app is flagged in that report, your career is over.

    3. 'Letting it be understood' is unenforceable--the bureaucrats will look after their own. That's the 'system' we have in place now. It works--for them. That's why I say any reform needs to be hardwired into law.

  5. Good point. Then hardwire into law. Let congresscritters wriggle away from passing that.

  6. I've not read Boasberg's order, but I assume your characterization is accurate--yet, this is a big weasel. The FBI will be splitting hairs over the meaning of "material."

    -->he is demanding that the FBI provide him, in a sworn submission, an "assessment" of those 29 applications, explaining 1) whether the misstatements and/or omissions were material<--

    The larger point is the Woods procedures document the claims made in the FISA warrant application. By giving the FBI an out to assert against compliance--or paperwork--violations is to dismiss the point of rules and regulations procedural compliance. The reason for insisting on "paperwork" compliance is to ensure the scrupulousness of the endeavor.

    It's human nature to cut corners, to speed efforts and activities along, to get to the end-game objective. The compliance requirements are in place to assure a minimum level of adherence to Constitutional norms and protections of those rights.

    Hair-splitting over questions of materiality is to ascent to corner-cutting as a matter of operational expediency in a trade-off over constitutional protections. Needless to say, this practice would be an inversion of the concept of "consent of the governed."

  7. Per CTH, just-fired ICIG Michael Atkinson oversaw in his previous DOJ role the "accuracy reviews" of those FISA apps.