Civil rights advocates have been warning for years that the Foreign Intelligence Surveillance Court and the entire Foreign Intelligence Surveillance Act system of issuing secret warrants are rife with potential for abuse; are handovers of powers to secret sources that better belong in the hands of duly elected and appointed judges conducting business in open court; and are flagrantly, blatantly unconstitutional.
And now we know they’re right.
And now someone, or a couple of someones, should go to prison.
In a stunning statement, Judge Rosemary Collyer, who presides over the FISC, responded to Department of Justice Inspector General Michael Horowitz’s finding of serious FBI misconduct related to the issuance of a surveillance warrant against Carter Page, the former Donald Trump campaign official — with this: “The FBI’s handling of the Carter Page applications, as portrayed in the OIG report, was antithetical to the heightened duty of candor. … 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.”
That last — that red flag raised over “other FBI applications” — is one of today’s biggest stories, being swallowed by insignificant, politically charged impeachment efforts from the left.
What Collyer is saying is what civil rights advocates have been saying for years: that the FISA system cannot be trusted.
That unknown intelligence agents making secret requests for secret surveillance against U.S. citizens in a closed-court hearing — from which opposing counsel is denied entry and during which opposing viewpoints are uninvited — is a recipe for constitutional disaster.
Witness: Carter Page.
Wouldn’t it have been nice, for example, for the FISC judge to have known Page had been actually working with the CIA on Russia, as a U.S. asset, at the time the FBI, secretly, behind FISC doors, was making the case that he was surreptitiously, for dastardly political reasons, working with Russia to steal an election on behalf of Trump?
Yes, yes indeed. Particularly since Page was the face that kicked off the whole Russia collusion investigation into Trump.
The FBI knew this. The FBI was informed of this. Yet the FBI failed to reveal that — the FBI chose to cover it. Why? The only answer that makes sense: for political reasons. For partisan purposes. Out of hatred for President Donald Trump.
The FBI owes Page an apology, for sure.
But even more, the FBI owes America accountability.
Fired FBI Deputy Director Andrew McCabe now says he’s “shocked and horrified” by the IG report. Fired FBI Director James Comey now says he was “wrong” on FISA and that he was “overconfident as director in our procedures.”
That’s nice. Apologies are great. But let’s not water down the crimes that have occurred here, beginning with the lies told by trusted government officials to obtain secret warrants against an innocent American citizen, in a secret court that since its inception, in 1978, has stood on shaky constitutional ground.
Can you say Fourth Amendment? How about Fifth?
Now say this, from Page 2 of Collyer’s order, about the process of applying for secret surveillance on a citizen: Not only does the petition have to come by way of “a Federal officer in writing upon oath or affirmation,” but the “application must also be approved by the Attorney General, Deputy Attorney General or, upon designation, the Assistant Attorney General for National Security … ‘based upon his finding that it satisfies the criteria and requirements’ ” of FISA.
The takeaway? These are not renegade, lower-level insignificants who’ve corrupted the FISA system.
Higher-ups signed off. Leadership gave the OK. They had to; it’s in the rules.
Comey, McCabe, then-Deputy Attorney General Sally Yates and then-FBI general counsel James Baker were all involved with the approval of the initial October 2016 FISA application, as well as its January 2017 renewal. Others who had their hands in later pertinent FISA applications were the FBI’s Dana Boente and Rod Rosenstein, former deputy attorney general.
What did they know, when did they know it, and who else was involved?
The answers should send somebody, or a group of somebodies, to jail. We’re not talking dereliction of duty here. We’re talking criminal abuse of power and position. We’re talking prison time.
Regardless, FISA reform is a must.
• Cheryl Chumley can be reached at email@example.com or on Twitter, @ckchumley.