January 16, 2020

A FISC-Deep State Alliance?

An Obama-era FBI apologist and left-wing blogger will head up “reform.”

Unless you’ve been hiding under a rock for the last three years, you recall that Barack Obama’s FBI used Hillary Clinton’s opposition research to generate a surveillance warrant against Donald Trump’s presidential campaign. Thus you’ll no doubt be relieved to hear that an Obama-era FBI apologist and left-wing blogger has been tapped to oversee reform.

As Angelo Codevilla, former staff member of the Senate Select Committee on Intelligence, put it, “Possibly the saddest fact about the intelligence deep state’s conspiracy against Trump is that at least some of the federal judges who sit on the FISA court apparently have been and continue to be part of it.”

Even as arguably the biggest scandal in the history of the nation was unfolding, the Foreign Intelligence Surveillance Court (FISC), created by the Foreign Intelligence Surveillance Act of 1978 (FISA), managed to remain immune from accusations of impropriety. Ostensibly, all the contemptible machinations — “mistakes,” according to Inspector General Michael Horowitz — that enabled the spying on Trump’s presidential campaign were committed solely by the FBI, the Justice Department, and the CIA.

Such assumptions are belied by reality. We begin with former FISC presiding Judge Rosemary Collyer sending a letter to the FBI in December 2019 criticizing it for misleading the court over its surveillance-application process and giving the agency until January 10 to come up with reforms.

Yet where has Collyer been? House Intelligence Committee Ranking Member Devin Nunes (R-CA) wrote a memo on February 2, 2018, explaining that “the Committee found that the FBI and DOJ failed to disclose the specific political actors paying for uncorroborated information” that went to the FISC, “misled the FISC regarding dissemination of this information,” and “failed to correct these errors in the subsequent renewals.”

Moreover, Nunes also wrote a letter to Collyer herself illuminating the same details.

Collyer’s response? As Wall Street Journal columnist Kim Strassel puts it, Collyer “responded a week later, with a dismissive letter that makes no reference to the Intelligence Committee findings.” Incredibly, Collyer also asserted that the court does not maintain a “systematic record” of proceedings and that Nunes would be better off asking the DOJ to look into the matter, due to “separation of power” considerations.

As Fox News legal analyst Gregg Jarrett rightly notes, if the FISC was behaving legitimately, when it learned it wase being lied to — a year and a half ago — “Collyer should have immediately ordered a ‘show cause contempt’ hearing demanding that Comey, Sally Yates, Andrew McCabe, Dana Boente and Rod Rosenstein all appear before the court to explain why they should not be held in criminal contempt for deceiving judges in the four warrant applications they signed.”

Jarrett’s conclusion for the failure to do so? “It means that the FISA court doesn’t really care that it was lied to by the FBI,” he adds.

All of the above history was necessary to give context to the latest machinations, which involve the man appointed to oversee the reforms demanded by Collyer, who has since retired. FISC’s new presiding Judge James Boasberg has appointed former Obama-era Justice Department official David Kris to do the job.

To say that Kris brings a bit of “baggage” with him to the job is an understatement. “Kris appeared in locations that pushed the false Russia collusion narrative, such as Rachel Maddow’s MSNBC show, the Lawfare blog, and Twitter, to defend the FBI and attack President Trump and other critics of the harmful surveillance campaign,” explains columnist Mollie Hemingway. “He once wrote that Trump ‘should be worried’ that Special Counsel Robert Mueller’s investigation into treasonous collusion with Russia meant ‘the walls are closing in.’”

As Fox News reveals, Kris has “also written extensively in support of the FBI’s surveillance practices.” In a published piece at Lawfare, a leftist blog site run by James Comey’s friend Benjamin Wittes, Kris asserted that the now-vindicated Nunes memo “tried to deceive the American people in precisely the same way that it falsely accused the FBI of deceiving the FISA Court.” He further asserted that the agency had “probable cause” to conclude former Trump aide Carter Page “was a Russian agent.”

Per the IG report, Americans now know that evidence pertaining to Carter was deliberately doctored.

In a piece for The Washington Post, Kris also defended the Steele dossier. He conceded that while some parts “apparently remain both salacious and unverified,” he argued that “other parts may well have been verified by independent investigation” and thus “would strengthen the credibility of the remainder.”

The truth? The IG report revealed the FBI withheld evidence undercutting that very idea. It also noted the agency failed to disclose damaging information about Steele’s credibility and reliability, despite the fact that one of Steele’s main dossier sources told FBI agents in January 2017 that Steele had misrepresented and exaggerated the dossier’s contents.

Kris’s take on the IG report itself? “First, the report repudiates the claims of a coup and related deep-state conspiracies in the FBI as advanced by President Trump and his supporters,” he tweeted on December 9, 2019.

His take on the FISC is equally biased. In September 2018, he asserted that that “FISA applications are subjected to exacting … and serious scrutiny” and “the FISA Court is not a rubber stamp.”

Really? In 33 years of of surveillance requests the FISC has rejected 0.03% of them, as in only 12 of 38,169 requests for surveillance warrants between 1979 and 2015.

Moreover, there have been no rejections since 2009.

And for those who only see the potential for abuse through a partisan lens, Codevilla reminds us that if the FISC had existed in 1972, “Nixon’s ‘plumbers’ would easily have gotten a warrant to get everything they wanted out of the DNC secretly. Their application need only have cited the McGovern campaign’s plentiful links to North Vietnam and the Communist world.”

Nunes has Kris’s appointment exactly right. “The FBI lied to the FISC, and to help make sure that doesn’t happen again, the FISC chose an FBI apologist who denied and defended those lies,” he asserted. “The FISC is setting its own credibility on fire.”

Or, maybe they’ve had help. One might ask where Chief Justice John Roberts has been. He has named every member of the current court and the separate three-judge panel called the Court of Review that hears appeals of FISC orders. His silence is hardly reassuring — at best.

At worst? America is heading toward a new “post-constitutional” normal where “justice” is whatever secret courts, unelected bureaucrats, documented apologists, and conspiracy theorists say it is — all championed by useful-idiot “resisters” naive enough to believe they are insulated by their ideological bona fides.

Until they aren’t.

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