FISA Fast Forward

Congress has extended Section 702 of the Foreign Intelligence Surveillance Act (FISA), The Hill reports, keeping “the nation’s warrantless surveillance powers” in place until April. Those who approved the move, including some California Republicans, might recall the case of Kevin Clinesmith, a lawyer with the FBI’s National Security and Cyber Law division.

In August of 2020 Clinesmith pleaded guilty to altering an email to show that U.S. Navy veteran Carter Page was not a CIA asset, when in fact he was. That FBI forgery exposed Page, an American citizen who worked with the Trump campaign in 2016, to surveillance under FISA.

For this crime, Clinesmith faced a maximum five years in prison and a fine of $250,000, but he got only a year’s probation, a small fine, and community service.

Judge James Boasberg  a Yale law alum and Obama appointee, told the court the allegedly remorseful Clinesmith had suffered by losing his job and facing the media “hurricane.” That was a curious choice of words given the FBI’s “Crossfire Hurricane” operation against Trump. The FISA warrant to surveille Page, Boasberg explained, would have been approved even without Clinesmith’s “misstatement.” Judge Boasberg ought to know.

In 2014, John Roberts appointed Boasberg to the FISA court, and since January 2020, Boasberg had been serving as presiding judge of the FISA court.  The Obama judge doubtless signed off on surveillance of Page then slipped back into his circuit court robe and let Clinesmith go with a tap on the wrist. This has no parallel with the U.S. Supreme Court.

The Senate does not hold hearings to determine whether an appointee is qualified for the FISA court. SCOTUS operates in public, with rulings and opinions endlessly analyzed. FISA operates in secret, with no lawyers present to represent those being surveilled. And so on.

The extension of warrantless surveillance under FISA greenlights more covert operations against Americans and empowers more felonies from FBI lawyers like Kevin Clinesmith, who even got his law license restored. Square that with the FBI motto of “Fidelity, Bravery, Integrity.”

The biggest booster of the FISA surge is the “intelligence community.” Their claim will be taken up in a separate post.

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