Posts tagged “FISA court

FBI’s Use of Fusion GPS Dossier Problematic

Since the release of the Nunes and Grassley memos, several readers of the Spingola Files have inquired about the nuances of obtaining warrants from a court to search for evidence or to eavesdrop on electronic communications.

Based on these memos, news reports, and statements of investigative journalists, we know that, in the summer of 2016, the upper echelon of the FBI sought to obtain a court order to eavesdrop and monitor four members of “the Trump team suspected of irregular contacts with Russian officials.” An application to conduct intrusive electronic surveillance of the Trump campaign was made to a secretive Foreign Surveillance Intelligence (FISA) court; however, the judge declined to sign the warrant, and instructed the FBI to “narrow its focus.”

To the chagrin of its judges, civil libertarians often refer to FISA courts as “rubber stamps.” From their inception in 1979 through 2015, FISA courts have rejected just twelve of 38,169 warrant requests.

One reason search warrants and court orders are rarely rejected by judges in FISA or civilian courts is the supporting documents — typically affidavits and/or sworn testimony — are thoroughly reviewed by prosecutors or other high-level government attorneys prior to judicial review. To have a search warrant or court order rejected during a judicial review is not only embarrassing, but an indication of ineptitude or jaundice on the part of the government attorney who signed-off on the application.

In law enforcement circles, an ethical investigator or prosecutor would take any additional requests for court orders pertaining to the same target(s) back to the judge who initially rejected the request. If, for some reason, the initial judge is unavailable, an ethical agent would advise the reviewing judge that the initial request for a court order had been denied. To do otherwise is called “judge shopping,” an unethical practice of seeking out judges with a reputation of giving greater consideration to the government. At this point, we do not know if the FBI took any subsequent request for court orders regarding the Trump team back to the initial judge.

This is where the FBI’s eavesdropping of the Trump transition team gets interesting. Based on the aforementioned memos, its seems the FBI sought to beef up its previously denied FISA court application with the Fusion GPS dossier, a document that contains “salacious” and “unverified” allegations pertaining to candidate Trump. We also know the FBI used a media report from Yahoo News in its affidavit at the FISA court. However, it appears the Yahoo News story consists of sourced information leaked to the news outlet by Christopher Steele, the former British spy who compiled much of the Fusion GPS “Trump dossier.” Steele’s services were underwritten by the Hillary Clinton campaign and the Democratic National Committee.

What we do not know is what the FBI told the FISA court during its application and renewal applications for an order to eavesdrop on Carter Page, an American citizen who had done volunteer work for the Trump campaign. Did the FBI tell the judge, in writing or verbally, that the Fusion GPS dossier was actually a document paid for by the Democrats? Did the FBI represent foreign national Christopher Steele as a credible, unbiased source? Did the FBI explain to the court that Steele leaked much of the information obtained from the Yahoo News article used in its affidavit?

Even more troubling are the details from the Grassley memo, which state “a friend of the Clintons,” and other “Clinton associates” passed information to Steele, which became a part of the Fusion GPS dossier. In other words, the Grassley memo alleges that Hillary Clinton’s campaign and the DNC, in effect, paid for and supplied some of the contents of an FBI affidavit used to monitor the Trump campaign.

Though many of the aforementioned questions have yet to be answered, a hunch tells me there is a FISA court judge out there who believes the upper echelon of the FBI, and possibly some high-ranking members of the DOJ, may owe him or her an explanation.


Michael Chertoff’s Brave New World

On the thirteenth anniversary of the terrorist attacks of September 11, 2001, various media outlets revisited the events of that fateful day, which caused me to wonder: how long it will be before 9/11 becomes a footnote in American history. After all, most of this year’s incoming college freshmen were entering kindergarten at the time the World Trade Center came tumbling down.

Nonetheless, it is the adults that I am most concerned about. The first group is the Obama administration, which seems hell bent on fulfilling George Orwell’s 1984 prophecy.  Americans are fortunate that the Constitution will force this group of misfits from power in the early days of 2017. Another troubling group is the cabal of neo-cons who have convinced Americans to surrender much of their privacy in the name of security.

Michael Chertoff is a member of the latter group. As a guest on Fox News last evening, Chertoff used the anniversary of 9/11 to chastise lawmakers’ efforts to marginalize the NSA’s Orwellian collection of Americans’ electronic data.

Now, Mr. Chertoff, a high-profile former prosecutor instrumental in New York’s Mafia crackdown, should know better. He is keenly aware that 99.999 percent of Americans using cellular telephones and the Internet have absolutely no relationship to terrorism.  Mr. Chertoff must know that government funded surveillance cameras at intersections in Sauk City, Wisconsin — a town with a population of 3,410 — will never capture an image of a plotting terrorist.  Still, Chertoff, Dick Cheney, President Obama, Janet Napolitano, et al, have spent billions and billions of dollars creating an American surveillance state in venues as small as Sauk City.  In the process, many of their special interest connections at corporations, such as Lockheed Martin, have received billion dollar government contracts paid for with borrowed money from China and quantitative easing.

And Michael Chertoff, Charles Krauthammer, Mark Belling, and the judges on the FISA courts, know full well that the NSA charter prohibits that agency from collecting information from American citizens while on U.S. soil. They further are aware that the Fourth Amendment requires warrants and court orders for searches to cite specific crimes that that have been or might be committed by specific persons before a search is authorized; yet they trample on the Constitution whenever it does not fit their political narrative.  When asked if the seizure of virtually every Americans’ cellular telephone and Internet data has stopped a single terrorist attack, members of both of the aforementioned groups refuse to answer, hiding behind national security concerns.  By refusing to answer, the members of these two groups are simply telling the public to shut-up, go away, and pay your taxes, as transparency is no longer needed in this republic.  Instead, American taxpayers should blindly trust the government, and leave our freedoms in the ever crushing grasp of the rubberstamps at the FISA courts, where an adversarial argument is NEVER heard.

Unlike this year’s incoming college freshmen class, I grew-up in an era when the United States was considered the land of the free and the home of the brave. Today’s youth have come of age in at a time when our nation is slouching, at light speed, towards China.  It is unfortunate these young people only know this nation as the land of the regulated and the home of the watched.

Class of 2018: it’s a brave new world out there.

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Steve Spingola is an author and retired Milwaukee Police Department homicide detective. His latest book, Best of the Spingola Files, Volumes I & II, is now available at Amazon.com.

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© Steven Spingola, Wales, WI, 2014