RUTHFULLY YOURS

This is written by a “Never Trumper” who has not let up on his criticism, so this column is very important….rsk

A strange madness is gripping the federal judiciary. It is in the process of crafting a new standard of judicial review, one that does violence to existing precedent, good sense, and even national security for the sake of defeating Donald Trump. We’ll call this new jurisprudence “Trumplaw,” and its latest victim is once again the so-called Trump travel ban. The perpetrator is the Fourth Circuit Court of Appeals.

This afternoon, the Fourth Circuit upheld a nationwide injunction on Trump’s temporary halt on immigration from six majority-Muslim countries — each of which is either a state sponsor of terrorism (Sudan and Iran) or overrun with terrorist violence, with entire regions under jihadist control (Libya, Yemen, Syria, and Somalia). Indeed, some of these countries no longer have a recognizably functional government.

Here is the essence of the court’s ruling: Trump’s campaign statements were so grotesque that they not only (1) hurt the feelings of a Muslim resident so much that he was granted standing to challenge an executive order that did not apply to him, but also (2) rendered an otherwise lawful executive order so damaging that the harm to the plaintiff’s feelings (and his wife’s possibly delayed entry into the United States) outweigh the government’s asserted national-security interest in pausing to reexamine foreign entry from hostile and war-torn countries.

Since Trumplaw is such a novel form of jurisprudence, it’s exceedingly hard to square with existing precedent. So, when existing precedent either doesn’t apply or cuts against the overriding demand to stop Trump, then it’s up to the court to yank that law out of context, misinterpret it, and then functionally rewrite it to reach the “right” result.

Take, for example, the Fourth Circuit’s reading of a Supreme Court case called Kleindienst v. Mandel. In Mandel, a collection of scholars demanded that the U.S. grant a non-immigrant visa to Belgian Marxist journalist. The government had denied him entry under provisions of American law excluding those who advocated or published “the economic, international, and governmental doctrines of world communism.” Make no mistake, the First Amendment protects the right to advocate or publish Marxist doctrines every bit as much as it protects the free exercise of the Islamic faith. Yet the Supreme Court still ruled against the Belgian journalist:

We hold that, when the Executive exercises [its] power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.

The meaning is clear. If the order is supported by legitimate and bona fide reasons on its face, you simply don’t go beyond the document. By that standard, the executive order is easily and clearly lawful. On its face, the order asserts a legitimate and bona fide national-security justification. On its face, the order isn’t remotely a Muslim ban. On its face it doesn’t target the Muslim faith in any way, shape, or form. On its face it describes exactly why each nation is included. The Fourth Circuit, however, interpreted Mandel to argue that the Court looked only at the face of the document to determine whether its supporting reasons were legitimate, not whether they were “bona fide.” It could go “behind” the document to determine “good faith.”

The FBI says it won’t give Congress the memos written by former FBI Director James Comey that reportedly gave his impressions of conversation he had with President Trump.

They say they must check with Special Counsel Mueller first and that there are “other considerations.”

Politico:

The House Oversight Committee and other congressional panels requested the memos earlier this month after The New York Times reported that Comey wrote in one that Trump had asked him to shut down the FBI’s investigation into former National Security Adviser Michael Flynn. Trump denied the allegation.

In a letter to Oversight Chairman Jason Chaffetz (R-Utah), the FBI’s assistant director for congressional affairs, Gregory Brower, said the bureau can’t provide the memo until it consults with Robert Mueller, the new special counsel overseeing the investigation into Russia’s election meddling.

In light of Mueller’s appointment “and other considerations,” Brower wrote, “we are undertaking appropriate consultation to ensure all relevant interests implicated by your request are properly evaluated.” Brower pledged to update the Oversight panel “as soon as possible.”

Chaffetz responded to Brower’s letter on Thursday by restating his demand for the memos and setting a new deadline of June 8.

“Congress and the American public have a right and a duty to examine this issue independently of the special counsel’s investigation,” Chaffetz said. “I trust and hope you understand this and make the right decision – to produce these documents to the committee immediately and on a voluntary basis.”

“All relevant interests”? The only “relevant interest” that should concern the FBI is a speedy resolution by the people’s representatives to a situation that is harming the president and — not coincidentally — the Republican Party.

And how long does it take to get the special counsel on the phone and ask him if it’s OK to release the memos to Congress?

The FBI is slow walking the investigation and is resisting cooperating with Congress, letting Trump dangle while his political enemies savage him. Can you say “revenge”?

Note to FBI: Stop playing cutesy with the most important pieces of evidence you have and give the damn memos to Congress.

Former CIA Director John Brennan’s appearance before the House Intelligence Committee on Tuesday rekindled the hopes of Democrats and others searching for proof that Donald Trump or his associates colluded with Russia to interfere with the 2016 election. But Brennan gave the committee old information — he frankly admitted it was old — that did not take into account what has been learned in recent months from other sources.

In short, this is what Brennan said: In the summer of 2016, I saw contacts between Russians and people in the Trump circle. I worried that the Russians were trying to use the Trump people for their own purposes. I gave the information to the FBI. But I have no idea what the FBI did with the information.

Brennan publicly provided the rationale for beginning the FBI counter-intelligence investigation that former FBI Director James Comey has said began in July 2016.

“I encountered and am aware of information and intelligence that revealed contacts and interactions between Russian officials and U.S. persons involved in the Trump campaign,” Brennan testified. “I know what the Russians try to do. They try to suborn individuals and they try to get individuals, including U.S. persons, to act on their behalf, either wittingly or unwittingly. And I was worried by a number of the contacts that the Russians had with U.S. persons and so therefore, by the time I left office on Jan. 20, I had unresolved questions in my mind as to whether or not the Russians had been successful in getting U.S. persons, involved in the campaign or not, to work on their behalf, again, either in a witting or unwitting fashion. And so therefore I felt as though the FBI investigation was certainly well-founded and needed to look into those issues.”

But Brennan could not tell the Intelligence Committee the results of the FBI investigation, or if the FBI had found, or not found, anything in the course of the investigation, which is now in its 10th month.

“Since you passed that information to the FBI director [in summer 2016], have you reviewed the FBI’s development of that evidence or any other evidence?” asked Democratic Rep. Eric Swalwell.

“I am unaware of what the bureau has done with that information, and I have no knowledge of anything, even, that the [CIA] has done since Jan. 20th,” Brennan answered.

But others do have knowledge of what the FBI has done with Brennan’s information. The FBI has briefed members of the so-called “Gang of Eight” — that is, the top Republican and Democrat on both House and Senate intelligence committees plus the two leaders of each house of Congress — on developments in the case. The bureau has also briefed the top members of the Senate Judiciary Committee, as well.

Dianne Feinstein, the Democratic senator from California who last year was vice chair of the Intelligence Committee, was part of the Gang of Eight until January of this year, and since then has been ranking Democrat on the Judiciary Committee. So she, unlike Brennan, has been kept up on what the FBI did with the information Brennan gave the bureau in the summer of 2016.

http://www.washingtonexaminer.com/byron-york-on-collusion-john-brennans-incomplete-story/article/2624016

In an appearance on CNN May 3, Feinstein noted that she had been briefed by the FBI and had also recently visited CIA headquarters to review documents. “Do you believe, do you have evidence that there was in fact collusion between Trump associates and Russia during the campaign,” anchor Wolf Blitzer asked Feinstein.

“Not at this time,” Feinstein answered.

It was a careful response — most people involved with the investigation have noted that while they haven’t seen proof of collusion to this point, some previously unseen evidence might still emerge. But on May 18, Feinstein appeared again on CNN.

“The last time we spoke, senator, I asked you if you had actually seen evidence of collusion between the Trump campaign and the Russians, and you said to me — and I’m quoting you now — you said, ‘Not at this time.’ Has anything changed since we spoke last?”

“Well, not — no, it hasn’t,” Feinstein responded, going on to note that she expected the new Robert Mueller special counsel probe could “bring forward any criminal activity.”

“But I just want to be precise, senator,” Blitzer said. “In all of the — you’ve had access from the Intelligence Committee, from the Judiciary Committee, all the access you’ve had to very sensitive information, so far you’ve not seen any evidence of collusion. Is that right?”

“Well, evidence that would establish that there’s collusion,” Feinstein said. “There are all kinds of rumors around. There are newspaper stories, but that’s not necessarily evidence.”

Other members of Congress with access to updated information have said similar things. And Feinstein’s statement was last Thursday, which is considerably more recent that Brennan’s testimony that he gave the FBI information in the summer of 2016 and did not know what had happened with that information since.

That doesn’t mean Brennan’s concerns weren’t real. But it does mean the story he told the House on Tuesday was incomplete.

FOR MY FRIEND AND E-PAL PHIL B …..RSK
The three men on the golf course didn’t look like superheroes. But Nick Bradley, Saul Martinez and Rod Rodriguez are just that. So are the other combat veterans who joined them on the links Monday at this year’s Warrior Open in Dallas. The tournament, sponsored by the George W. Bush Presidential Center since 2011, celebrates wounded veterans’ recovery and their continuing service to America.

For these three comrades in arms, it was another reunion, since they have played in the tournament since its first iteration.

Staff Sgt. Nick Bradley joined the Air Force in 2001. He did two tours in Iraq and a fateful one in Afghanistan providing security for generals in Kabul. On Aug. 3, 2008, his team was moving in a small convoy when a Taliban antitank mine exploded under his Land Cruiser’s gearshift.

The blast broke every bone in his face, right arm, hand, hip, knee, shin and foot. Knitting him back together took 16 surgeries and left Nick with six screws in his face, 51 in his arm and 11 in his hand. The doctors told him he wouldn’t walk for a year or even sit up without assistance.

“I didn’t like that answer,” he says. “It cut me deep.” He taped a picture of his daughter next to his bed. Two days later, he was sitting up. While exploring the ward in a wheelchair, he discovered a putting green. Against doctor’s orders, he was soon standing and hitting balls one-handed. Two months after arriving at Walter Reed, Nick walked out of the hospital.

On Tuesday he celebrated this year’s Warrior Open by fixing dinner for his wife and daughter, Khaila, who will turn 11 next month, a few days after her baby sister is due. Nick credits his family and golf for his recovery. While he brags that he “played great” this year, the highlight was having his daughter meet the former president, who he says “inspires me every day to get better in life.”

Army Sgt. Saul Martinez enlisted because of 9/11. He served in Iraq during the 2007 surge, when an explosively formed projectile ripped apart his vehicle. The blast killed two friends and left him a bilateral amputee—without most of his legs.

Saul says he made it back mostly because of his wife, Sarah: “She pushed me, motivated me, and told me I could do things I never thought I could do again.” After leaving the service in 2010, he moved to Montana, where he is director of services for Warriors and Quiet Waters. This program, inspired by Psalm 23—“He leads me beside quiet waters, he restores my soul”—uses fly-fishing to help veterans regain their physical health and overcome post-traumatic stress and traumatic brain injuries.

Sgt. First Class Michael “Rod” Rodriquez joined the Army in 1992, later becoming a Green Beret. He had dozens of concussions in training and combat. Then, more than a decade ago in Afghanistan, he suffered three traumatic brain injuries within a few weeks, including one from a bomb that temporarily cost him sight in his left eye. As his team’s senior medic, he hid his injuries to stay with his comrades.

During the Obama years, the National Security Agency intentionally and routinely intercepted and reviewed communications of American citizens in violation of the Constitution and of court-ordered guidelines implemented pursuant to federal law.

The unlawful surveillance appears to have been a massive abuse of the government’s foreign-intelligence-collection authority, carried out for the purpose of monitoring the communications of Americans in the United States. While aware that it was going on for an extensive period of time, the administration failed to disclose its unlawful surveillance of Americans until late October 2016, when the administration was winding down and the NSA needed to meet a court deadline in order to renew various surveillance authorities under the Foreign Intelligence Surveillance Act (FISA).

The administration’s stonewalling about the scope of the violation induced an exasperated Foreign Intelligence Surveillance Court to accuse the NSA of “an institutional lack of candor” in connection with what the court described as “a very serious Fourth Amendment issue.” (The court is the federal tribunal created in 1978 by FISA; it is often referred to as a “secret court” because proceedings before it are classified and ex parte — meaning only the Justice Department appears before the court.)

The FISA-court opinion is now public, available here. The unlawful surveillance was first exposed in a report at Circa by John Solomon and Sara Carter, who have also gotten access to internal, classified reports. The story was also covered extensively Wednesday evening by James Rosen and Bret Baier on Fox News’s Special Report.

According to the internal reports reviewed by Solomon and Carter, the illegal surveillance may involve more than 5 percent of NSA searches of databases derived from what is called “upstream” collection of Internet communications.

As the FISA court explains, upstream collection refers to the interception of communications “as they transit the facilities of an Internet backbone carrier.” These are the data routes between computer networks. The routes are hosted by government, academic, commercial, and similar high-capacity network centers, and they facilitate the global, international exchange of Internet traffic. Upstream collection from the Internet’s “backbone,” which accounts for about 9 percent of the NSA’s collection haul (a massive amount of communications), is distinguished from interception of communications from more familiar Internet service providers.

Upstream collection is a vital tool for gathering intelligence against foreign threats to the United States. It is, of course, on foreign intelligence targets — non-U.S. persons situated outside the U.S. — that the NSA and CIA are supposed to focus. Foreign agents operating inside the U.S. are mainly the purview of the FBI, which conducts surveillance of their communications through warrants from the FISA court — individualized warrants based on probable cause that a specific person is acting as an agent of a foreign power.

The NSA conducts vacuum intelligence-collection under a different section of FISA — section 702. It is inevitable that these section 702 surveillance authorities will incidentally intercept the communications of Americans inside the United States if those Americans are communicating with the foreign target. This does not raise serious Fourth Amendment concerns; after all, non-targeted Americans are intercepted all the time in traditional criminal wiretaps because they call, or are called by, the target. But FISA surveillance is more controversial than criminal surveillance because the government does not have to show probable cause of a crime — and when the targets are foreigners outside the U.S., the government does not have to make any showing; it may target if it has a legitimate foreign-intelligence purpose, which is really not much of a hurdle at all.

So, as noted in coverage of the Obama administration’s monitoring of Trump-campaign officials, FISA section 702 provides some privacy protection for Americans: The FISA court orders “minimization” procedures, which require any incidentally intercepted American’s identity to be “masked.” That is, the NSA must sanitize the raw data by concealing the identity of the American. Only the “masked” version of the communication is provided to other U.S. intelligence agencies for purposes of generating reports and analyses. As I have previously explained, however, this system relies on the good faith of government officials in respecting privacy: There are gaping loopholes that permit American identities to be unmasked if, for example, the NSA or some other intelligence official decides doing so is necessary to understand the intelligence value of the communication.