We now know: FISA court speaks, but not to the point

When FISA court presiding judge Rosemary Collyer issued her order rebuking the FBI earlier this week, I wondered where the court had been. Don’t FISA judges read the newspapers?

Like so many involved in the Russia hoax, Judge Collyer gave every appearance of having tumbled only lately to the misconduct committed before her court, courtesy of the Department of Justice Inspector General report issued last week. I embedded a copy of her four-page order in my post commenting on it.

I borrowed Trey Gowdy’s comment on James Comey’s midnight confession of pseudo culpability to Chris Wallace this past Sunday. “Sometimes it’s better late than never,” Gowdy observed, “and sometimes it’s just too damn late.” I put Judge Collyer’s order in the latter of the two categories.

I also thought it was too much of nothing. I asked what sanctions the court would administer to the FBI officers and Department of Justice lawyers who swore out the FISA applications had been verified? I wanted some accountability for the court’s own role in the wrongdoing on the basis of which it authorized the surveillance of Carter Page and the Trump campaign.

Kim Strassel dramatically expands on the need for the court to speak up and account for itself in her Wall Street Journal Potomac Watch column “FISA court owes some answers.” Kim adds these salient facts:

On Feb. 7, 2018, Devin Nunes, then chairman of the House Intelligence Committee, sent a letter to Judge Collyer informing her of its findings in his probe of the FBI’s Page application. He wrote that “the Committee found that the FBI and DOJ failed to disclose the specific political actors paying for uncorroborated information” that went to the court, “misled the FISC regarding dissemination of this information,” and “failed to correct these errors in the subsequent renewals.” Mr. Nunes asked the court whether any transcripts of FISC hearings about this application existed, and if so, to provide them to the committee.

Judge Collyer responded a week later, with a dismissive letter that addressed only the last request. The judge observed that any such transcripts would be classified, that the court doesn’t maintain a “systematic record” of proceedings and that, given “separation of power considerations,” Mr. Nunes would be better off asking the Justice Department. The letter makes no reference to the Intelligence Committee findings.

Mr. Nunes tried again in a June 13, 2018, follow-up letter, which I have obtained. He told the court that Congress “uncovered evidence that DOJ and FBI provided incomplete and potentially incorrect information to the Court,” and that “significant relevant information was not disclosed to the Court.” This was Mr. Nunes telling FISC exactly what Inspector General Michael Horowitz told the world—18 months sooner. Mr. Nunes asked Judge Collyer to “initiate a thorough investigation.” To assist her, the same month he separately sent FISC “a classified summary of Congress’s findings and facts” to that point. The letter was signed by all 13 Republican members of the Intelligence Committee.

Judge Collyer blew him off. Her letter on June 15, 2018, is four lines long. She informs Mr. Nunes she’s received his letter. She says she’s also received his classified information. She says she’s instructing staff to provide his info to “the judges who ruled on the referenced matters.” She thanks him for his “interest” in the court.

It is past time for the FISA court to speak up and account for itself. The court’s order this week falls for short of such an accounting. Putting other policy-related issues to one side, absent such an accounting, the court ought to be put in the course of ultimate extinction, and soon.

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