FISA Abuses Are a Special Threat to Privacy and Due Process The standard for obtaining an intelligence surveillance warrant is lower than that in a criminal investigation. By David B. Rivkin Jr. and Lee A. Casey
https://www.wsj.com/articles/fisa-abuses-are-a-special-threat-to-privacy-and-due-process-1519689446
The House Democratic surveillance memo is out, and it should worry Americans who care about privacy and due process. The memo defends the conduct of the Justice Department and Federal Bureau of Investigation in obtaining a series of warrants under the Foreign Intelligence Surveillance Act to wiretap former Trump campaign adviser Carter Page.
The Democrats argue that Christopher Steele, the British former spy who compiled the Trump “dossier” on which the government’s initial warrant application was grounded, was credible. They also claim the FISA court had the information it needed about the dossier’s provenance. And they do not dispute former FBI Deputy Director Andrew McCabe’s acknowledgment that the FBI would not have sought a FISA order without the Steele dossier.
The most troubling issue is that the surveillance orders were obtained by withholding critical information about Mr. Steele from the FISA court. The court was not informed that Mr. Steele was personally opposed to Mr. Trump’s election, that his efforts were funded by Hillary Clinton’s campaign, or that he was the source of media reports that the FBI said corroborated his dossier. These facts are essential to any judicial assessment of Mr. Steele’s veracity and the applications’ merits.
The FBI should have been especially wary of privately produced Russia-related dossiers. As the Washington Post and CNN reported in May 2017, Russian disinformation about Mrs. Clinton and Attorney General Loretta Lynch evidently prompted former FBI Director James Comey to announce publicly the close of the investigation of the Clinton email server, for fear that the disinformation might be released and undermine the bureau’s credibility.
In addition, even assuming the dossier was accurate regarding Mr. Page, its allegations are thin. Mr. Page was said to have met in Moscow with Russian officials, who raised the potential for cooperation if Trump was elected; Mr. Page was noncommittal. The most significant claim—that those officials offered Mr. Page a bribe in the form of Russian business opportunities—suggests he was not a Russian agent. Existing operatives don’t need to be bribed.
There was no good reason to withhold from the FISA court any information regarding Mr. Steele, his anti-Trump biases, or the dossier’s origin as opposition research. The court operates in secret, so there was no danger of revealing intelligence sources and methods. The inescapable conclusion is that the information was withheld because the court would have been unlikely to issue the order if it knew the whole truth.
That’s a problem because following the rules and being absolutely candid with the court is even more essential in the FISA context than in ordinary criminal investigations. Congress enacted FISA in 1978 to create a judicial process through which counterintelligence surveillance could take place within the U.S., even when directed at American citizens, consistent with “this Nation’s commitment to privacy and individual rights.” CONTINUE AT SITE
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