Of Constitutional Concern

Through a vote yesterday, President Trump has been formally impeached by the U.S. House of Representatives.  The matter now moves to the U.S. Senate.

I’ll leave the impeachment proceedings to the talking heads — for now at least.  Today I’d like to focus, instead, on another area of constitutional concern that has been lost in the constant drumbeat of news on impeachment.  I’m speaking of an extraordinary order issued by the FISA Court earlier this week, in the wake of the recent Inspector General’s report on the conduct of the FBI and the Department of Justice in receiving authorization to conduct surveillance.  I’ve linked to the text of the Order above.

fb-seal-headquartersThe FISA court gets its name from the Foreign Intelligence Surveillance Act, the statute which created the Court.  FISA requires the government to apply for, and receive authorization from, the FISA Court before it can engage in electronic surveillance.  The applications are to be made in writing, upon oath or affirmation, by a federal officer from the agency, such as the FBI, that seeks to conduct the surveillance.  The FISA Court — consisting of judges appointed by both Democratic and Republican administrations — is then supposed to review the applications to decide whether they establish probable cause that the proposed surveillance target is a “foreign power” or an “agent of a foreign power” within the meaning of FISA.

This process is critical because — as the FISA Court’s Order issued this week notes — it was designed to allow the FISA Court to provide a check on executive branch power to conduct surveillance and thereby protect the Fourth Amendment rights of American citizens against unlawful search and seizure.  To allow the Court to do that job, FISA imposes a heightened duty of candor upon the federal agents and agencies in their applications to the Court.  The FISA Court considers candor to be “fundamental” to its effective operations.

The Order issued this week makes it clear that the FBI, in seeking the FISA Court’s approval of the surveillance order that was discussed in the Inspector General’s report, did not meet its duty of candor — not by a long shot.  To the contrary, the Court notes that the Inspector General’s report “documents troubling instances” in which FBI personnel provided information that was “unsupported or contradicted by information in their possession” and “withheld . . . information in their possession which was detrimental to their case for believing that [Carter] Page was acting as an agent of a foreign power.”

In addition, the Order notes that an attorney for the FBI engaged in conduct that “apparently was intended to deceive the FBI agent who ultimately swore to the facts in that application about whether Mr. Page had been a source of another government agency.”  The Court believes that the conduct of the attorney gives rise to “serious concerns about the accuracy and completeness of the information provided to the [FISA Court] in any matter (emphasis added)” in which the attorney was involved.

The Order adds:  “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.”

The FISA Court’s Order concludes by ordering the FBI to provide a sworn written submission identifying what it has done, and what it will do, to ensure that the statements of facts in each FBI application accurately and completely set forth the material information in the possession of the FBI.  It will be interesting to see how the FBI responds.

In today’s world, there’s often argument about whether the news that is reported, and the characterization of events that is conveyed, is slanted or biased or accurate.  The FISA Court’s Order — which is only four pages long, and can be read and understood by any educated American — allows us to go to the source and see how a Court that is composed of judges with lifetime tenure who were appointed by both Republicans and Democrats is reacting to a detailed report on serious misconduct by the FBI.

The Fourth Amendment is there to protect all of us — Democrat, Republican, or Independent, liberal or conservative.  If the FBI is willing to distort, deceive, and misrepresent to pursue an agenda, that’s a concern for everyone.  We should all be grateful to the FISA Court for putting aside politics, recognizing that the ends don’t justify the means, and holding the FBI to account.

3 thoughts on “Of Constitutional Concern

  1. I am very curious as to whether (1) the FBI’s obligations for a FISA warrant are any different than any other law enforcement body seeking a judicial warrant; and (2) how the FBI’s conduct compares to the conduct of other law enforcement groups throughout the country. Is this a wake-up call for scrutiny of all law enforcement conduct to ensure constitutional compliance or just a politically-motivated critical look at one aspect of law enforcement because they went after powerful people in this instance?

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    • With respect to your second point, Doug, I’m thinking it should be the former, rather than the latter. The FISA Court certainly seems to think that the FBI’s behavior in this particular instance raises issues that go beyond the specific FISA application addressed by the Inspector General’s report.

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  2. I understand that almost 99% of FISA warrant requests are granted by the court which leads me to believe the standards for approval are not as stringent as the American people have been led to believe. However, the 17 significant errors, omissions or misleading statements in multiple warrant requests by three separate teams of FBI agents clearly demonstrate to me that bias existed. If you simply can’t believe this and instead see it as incredible incompetence there still must be an effort to hold responsible those involved in this travesty of justice. Simply changing procedures and providing more oversight as suggested by FBI Director Wray is like using a band aid on a broken arm. The FISA Court must hold accountable those who participated in these incredible unjust acts intentional or not.

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