My Friends And Family Resolution

I’ve thought a bit about what my New Year’s resolution for 2020 should be, and I’ve decided it really is pretty simple:  my resolution is to try to make it to the end of 2020 without irretrievably alienating any of my friends or family.

This may sound like an easy resolution to keep, but I don’t think it is — not really.  In fact, I think 2020 is going to be one of the toughest years, ever, to get through while keeping your coterie of friends, family, and colleagues intact.  That’s because, in this already absurdly super-heated political environment, we’re moving into a year where there will be a presidential campaign, a presidential election, and, apparently, an impeachment trial — all percolating at the same time.  Many of my friends and family members, of all political stripes, feel very passionately about each of those events in isolation.  When you put them all together you’ve got what is probably the most combustible combination of political events in American history.

One year that might be comparable is 1864, when a presidential election took place in the midst of a Civil War, when even the Union, alone, was bitterly divided.  But even 1864 might not really be a good comparator, because in those days the candidates and the country as a whole didn’t need to run a gauntlet of caucuses, primaries, debates, and 24-hour news coverage.  Unfortunately, we’ll be subjected to all of those things.

Our current circumstances have produced the kind of fervent environment where one ill-chosen word or ill-advised joke could damage feelings beyond repair, end a friendship that has endured for decades, or cause family members to vow never to talk to each other or interact again.  I don’t want that to happen.  I like and respect all of my family members and friends, and I’d like to end 2020 without experiencing any regrets that some stupid blog post, social media comment, or argument after a few adult beverages wrecked things.  So this year will be a year of walking on eggshells, with all things dealing with the presidential election off-limits for me.  Call me a wimp if you want.

This is my own, self-imposed pledge.  I’m not going to shush my friends or try to keep them from expressing their strongly held views in strongly phrased ways.  But as for me, I value my friends and family more than I value my need to engage in political debates.

 

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.