- - Wednesday, May 23, 2018

Story after story comes out about the extent to which partisan politics played a key role in the Obama Department of Justice (DOJ), intelligence community and FBI during the 2016 presidential campaign. It’s especially so in the context of the Hillary Clinton email investigation, and the more recent suggestions of a “mole” or “spy” inside the Trump campaign.

These dynamics continued right up to Election Day and even through the transition between the Obama and Trump administrations.

As a result, some of us “old pros” really want to know some very basic facts and, hopefully, these will eventually come out as the result of one investigation or another.

The questions proposed here are not in any specific order, but all have a central theme:

• Has the Foreign Intelligence Surveillance Act (FISA) court done its own internal — and hindsight — review of all the petitions for surveillance done during this period?



• Do the petitions accurately identify and attribute the sources of the facts alleged?

• Are politically connected and associated sources accurately and fairly identified?

• Are there patterns in the timing of the petitions that in hindsight suggest political motivations?

• Are there factual assertions in the petitions that suggest an inside source or a mole? Are these assertions attributed?

• What questions, if any, did the court have for the DOJ or FBI relative to these petitions?

• What additional factual information, if any, did the court request?

• Did the court reject any petitions related to these matters, and if so, why? Did it reject earlier versions and later approve them? What revisions were made and why?

• Were any of the sources cited in the various petitions attributed to, or related to, those FBI personnel who have been identified and removed from their jobs as the result of the various internal FBI or DOJ investigations?

• Do any of the petitions suggest that the “take” from an earlier surveillance was or could have been shared with officials or individuals who should not have had access to it?

The answers to these questions, and others related to this general theme, are clearly within the powers of the FISA Court to determine — and on their “own motion,” as the lawyers say.

Specifically, the U.S. Foreign Intelligence Surveillance Court Rules of Procedure provides that: “[E]ach Judge may exercise the authority vested by the Act and such other authority as is consistent with Article III of the Constitution and other statutes and laws of the United States, to the extent not inconsistent with the Act.”

This gives the FISA Court judges supervisory and plenary authority over their implementation of the FISA law, and they should, on their own motion, do a comprehensive review of the role of the FISA Court during these pivotal periods of the 2016 presidential election.

This kind of review will be of benefit to all, assuming that it can be released in a carefully drafted and redacted report, perhaps even as an opinion by the FISA Appeals Court, which has opined from time to time on other controversial matters, such as the overlapping jurisdictions between the FISA and the criminal law process.

Too many people have the opinion that the FISA Court is a rubber stamp for the FBI and the Justice Department, and that the court will do anything requested of it. On the other hand, supporters of the court and the FISA process continue to reassure us that the court is ethically and legally bound to fairly implement the FISA law — essentially as the judicial custodians of the public trust in the foreign intelligence surveillance process itself. Congress, which created the FISA process in the wake of the Watergate scandal and the Church Committee in the 1970s, would also seem to have vested interest in the continued credibility of the court.

In fact, if the court chooses not to do an internal review as suggested here, Congress could easily have something to say about it in the form of new procedural and substantive amendments to the FISA law. After all, Congress maintains that FISA is the exclusive authority to perform the kinds of intrusive surveillances covered by the act. Accordingly, it seems time for some basic reassurances that the FISA process has not become politicized, as some recent reports have suggested.

Daniel Gallington served in senior national security positions in the Office of the Secretary of Defense, the Department of Justice and as bipartisan general counsel for the U.S. Senate Select Committee on Intelligence.

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