I had reached part 4 in my series We now know: FISA court must go” when events permitted a break. Today I return on the occasion of the March 4 Opinion and Order entered by FISA court Chief Judge James Boasberg (embedded below). Under the terms of the order, as Catherine Herridge and Mellissa Quinn report in their CBS News story, “Surveillance court judge bars some DOJ and FBI officials from warrant process.” Here is the opening of their story:
A federal judge on the government’s secretive surveillance court said Justice Department and FBI personnel who are under scrutiny for their conduct in a case involving a former Trump campaign aide are barred from participating in the surveillance warrant application process.
U.S. District Judge James Boasberg, the presiding judge on the Foreign Intelligence Surveillance Court (FISC), issued an order Wednesday setting out an additional framework for the Justice Department and FBI to follow in future FISA proceedings. The order specifies that “no DOJ or FBI personnel under disciplinary or criminal review relating to their work on FISA applications shall participate in drafting, verifying, verifying, reviewing or submitting such applications to the court.”
Boasberg’s order requires “any finding of misconduct relating to the handling of FISA applications to be swiftly reported to the surveillance court.” The court also ordered the Justice Department and FBI to include in applications representation from agency lawyers attesting to the information they contain, a further indication of mistrust in the Justice Department and FBI.
This seems to me little ado about the biggest scandal in American political history. It is a scandal involving a plot to take down a presidential candidate and president. How many FBI and DoJ officials involved in the Russia hoax remain at their desks inside the FBI and the Department of Justice doing their thing? The number should be few, but it would be a service if you would kindly let us know.
So far as we can tell, every one of the four Carter Page FISA warrants relies in substantial part on the Clinton campaign’s Steele Dossier. On their face these warrant applications appear to lack verification of the allegations deriving from the Steele Dossier. Each of the applications is heavily redacted, yet we know that this is the case with respect to the third and fourth applications based on the Horowitz IG report. The first and second applications can’t have been much better. The applications are shot through with hearsay upon hearsay. And it gets worse. See generally Opinion and Order at pages 4-7 (“Problems with the Carter Page applications”).
Did any of the four judges who signed off on the applications notice? Has the court undertaken a review of its own role in this matter? Again, it would be a service if you would kindly let us know.
The body of Judge Boasberg’s Opinion and Order is devoted to procedural improvements undertaken or to be undertaken by the FBI and the DoJ. Procedures are to be tweaked. Training is to be enhanced. Accuracy is to be assured. And so on and on. See generally Opinion and Order at pages 8-19.
In the meantime, “no DOJ or FBI personnel under disciplinary or criminal review relating to their work on FISA applications [Ed.: whoever they are] shall participate in drafting, verifying, reviewing, or submitting such applications to the Court. Any finding of misconduct relating to the handling of FISA applications shall be promptly reported to the Court.”
We are faced with two serious questions: (1) what meaningful consequences are to be visited upon the perpetrators of this hoax?, and (2) what is to be done with the FISA court?
This is not a case in which “mistakes were made,” i’s not dotted and t’s not crossed. The FISA court itself now stands revealed as an accomplice of those involved in the wrongdoing against Carter Page and everyone else whose communications with him were seized under the illegal surveillance authorized by the court. The target was of course Donald J. Trump. What we have here is a theatrical production of the sound and fury variety.
NOTE: Judge Boasberg also had trouble with the basic facts of the case. See Jerry Dunleavy’s Washington Examiner column “FISA court mistakenly says Fusion GPS was digging up dirt on Hillary Clinton, not Trump.”