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.

Patriot Act Expansion Of FISA Lapses

For the time being. Emailer Jim sent me a link to the NYT article that explains that the House recessed without addressing the Senate bill that would have renewed the Patriot Act's expansion of FISA in the fields of counterterrorism and espionage investigations. The title and sub-head say it all:

House Departs Without Vote to Extend Expired F.B.I. Spy Tools 

The operational effect may be limited because the surveillance laws remain in effect for existing investigations.

As we explained earlier, of the three provisions in question,

(1) the “business records” provision;
(2) the “roving wiretap” provision; and
(3) the “lone wolf” amendment to the FISA definition of “agent of a foreign power”.

only #1, regarding "business records" was really controversial. This was the provision that allowed NSA to scoop up all metadata. Later developments led to the FBI grossly abuse their ability to search NSA databases in order to try to prevent Donald Trump's election--and when that failed to lead an Intel Community coup against the president.

Even this temporary lapse of these provisions is unlikely to have much effect, as the NYT explains:

McCarthy's Critique of FISA 'Reform'

In a comment dated March 14, Titan 28 pointed out a new article by Andy McCarthy--No to ‘FISA Reform’--in which McCarthy inveighs against

Senators Paul and Lee, their progressive allies, and the Trump supporters they’ve hoodwinked would make us vulnerable to terrorists without fixing FISA.

According to McCarthy:

the president seems poised to fulfill one of the fondest dreams of Clinton and Obama Democrats: Government policy that regards international terrorism as a mere crime, a law-enforcement issue to be managed by federal judges rather than a national-security threat from which the officials Americans elect must safeguard our country.

McCarthy makes some valid points, although he can't resist indulging in the usual misguided NeverTrump smears. For example, he's quite right that Libertarians misunderstand the Fourth Amendment, misconstruing it as somehow governing the Commander in Chief's national security powers.

However, the narrative that McCarthy presents is not entirely honest. He wants us to believe that assorted knuckleheads--Trump supporters hoodwinked by Paul, Lee, and progressives--want to take international terrorism out of the hands of the Commander in Chief, to transform it into a LE issue rather than a national security issue.

That's patently unfair. There is no reason to doubt that the real concern OF Trump supporters is for the civic liberties of Americans. Indeed, McCarthy concedes, obliquely, that there really was a problem with "the post-9/11 record of intelligence-agency envelope-pushing and deceit that eroded public trust." And that envelope-pushing had little to do with "roving wiretaps" and "lone wolf" terrorists. Rather, as I explained in What About FISA "Renewal"?, it had to do with the "business record" provision of the Patriot act that enabled the bulk collection of communication metadata.

McCarthy is no doubt correct that most of the "conservatives" who want to "reform" or "abolish" FISA are fairly clueless about the Constitution. As I explained, this latest controversy will not result in a repeal of FISA or, likely, anything remotely similar to the necessary transformation of the FISA regime. McCarthy, however, attributes the outrage of the Trump supporters to an unslaked thirst for revenge against the bureaucrats who attempted to stage a coup against President Trump. Revealingly, McCarthy seems to think that firing a few bureaucrats--or having OIG direct some harsh words against them--is sufficient punishment for an attempted coup:

UPDATED: The Central Scandal of the Russia Hoax--and Our Constitutional Crisis

Scott Johnson at Powerline, The Biggest Scandal, offers some comments regarding two recent articles by Andy McCarthy. I certainly am in total agreement with Johnson's assessment that this whole Russia Hoax constitutes "the biggest scandal in American political history." Part of the scandal beyond the actions of the Obama Administration and officials at the DoJ/FBI/CIA/State--and including not only political appointees but also career professionals--is the complicity of the press and its continued silence. That complicity extends beyond biased reporting to complicity in the FISA process itself through the FBI's leak process and then reuse of the leaked material, laundered through the press, as "probable cause" for the FISA against Carter Page.

What I'd like to do here is to expand a bit on a point that McCarthy makes in the first article, "Reading the FISA Redactions." The entire article is well worth a careful study for anyone who wants to understand what's going on with all the talk about the FISA application and, especially, the renewal applications. I have to say, I take my hat off to McCarthy--he goes through the applications step by step, demonstrating that, for all the redacting that was done, the bottom line is readily apparent: The FBI had precious little in the way of "probable cause" to offer the FISA Court (FISC), and yet their warrant was approved--and thrice renewed! This never fails to amaze me every time the subject comes up.

McCarthy gets to the heart of the matter--the first of many important points he makes--right up front:

Page has never been charged with any crime, much less with espionage. That is a salient fact because to get a FISA warrant on an American citizen, the FBI is required to show that the citizen’s activities on behalf of a foreign power violate federal criminal law. The FBI and Justice Department went to the FISA court four times over nine months, from October 2016 through June 2017, claiming to have grounds that Page was involved in heinous clandestine activity. Why isn’t he in handcuffs?

I believe it is because they never had a case. All they appear to have had were the 2013 attempt by Russian spies to recruit Page as an asset, and the Steele dossier.

Now here's what I want to make clear. The original FISA order, when the target is a US Person (USPER) such as Carter Page, lasts for 90 days. A FISA order can be renewed, but the renewal is NOT granted on an "if at first you don't succeed, try try again" basis. To get an extension on a FISA--and let me say here that I completely agree with McCarthy that the initial FISA was pure BS--the FBI has to either:

1) make a reasonable showing that it is making progress in its investigation as a result of its use of FISA, i.e., it is moving forward with additional evidence gained through FISA that tends to confirm the presentation of the case that was made in the initial application, or

2) in the absence of such progress, the FBI must make a reasonable showing that the extension is likely to produce progress.