Obama and the FISA Court
This column is trying to imagine how an editor at The Wall Street Journal would treat a draft article alleging a political campaign adviser was secretly working for a foreign government if the story featured uncorroborated opposition research paid for by a rival campaign. If the writer of the draft article assured the editor that readers would not be told where the information originated, it’s a safe bet this would not increase the chances of publication.
This column is also trying to imagine the conversation that would ensue if a reporter or writer then tried to persuade the editor by appealing to the authority of Yahoo News.
Of course the Journal isn’t the only media outlet that enforces standards. Many organizations strive to ensure basic accuracy and fairness. Can it possibly be true that the evidentiary standards for obtaining a federal warrant allowing the government to spy on the party out of power are significantly lower than in a professional newsroom?
Today the American people are finally able to see the memo from the majority staff of the House Permanent Select Committee on Intelligence alleging abuse of government surveillance powers during the last presidential campaign. Many will be appalled that, at least according to the memo, on October 21, 2016 the Department of Justice and the FBI obtained a court order authorizing electronic surveillance on a Trump campaign volunteer without telling the court that Hillary Clinton and the Democratic National Committee had paid for at least some of the research presented.
The memo further states that according to the head of the FBI’s counterintelligence division, corroboration of the research was in its “infancy” at the time the government requested and received approval for this surveillance. Is it that easy to spy on the party out of power?
Today a number of libertarians and liberals are pointing to a blog post by USC law professor Orin Kerr, who says that failure to disclose the interests of the source is often a non-issue:
Part of the problem is that judges figure that of course informants are often biased. Informants usually have ulterior motives, and judges don’t need to be told that. A helpful case is United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir. 1988), in which the government obtained a warrant to search a house for a meth lab inside. Probable cause was based largely on a confidential informant who told the police that he had not only seen a meth lab in the house but had even helped others to try to manufacture meth there. The magistrate judge issued the warrant based on the informant’s detailed tip. The search was successful and charges followed.
The defendants challenged the warrant on the ground that the affidavit had failed to mention the remarkable ulterior motives of the informant. The affidavit didn’t mention that the “informant” was actually a married couple that had been in a quarrel with the defendants; that the couple was facing criminal charges themselves and had been “guaranteed by the prosecutor that they would not be prosecuted if they provided information”; and that they had been paid by the government for giving the information. The affidavit didn’t mention any of that. A big deal, right?
According to the court, no. “It would have to be a very naive magistrate who would suppose that a confidential informant would drop in off the street with such detailed evidence and not have an ulterior motive,” Judge Noonan wrote. “The magistrate would naturally have assumed that the informant was not a disinterested citizen.” The fact that the magistrate wasn’t told that the “informant” was guaranteed to go free and paid for the information didn’t matter, as “the magistrate was given reason to think the informant knew a good deal about what was going on” inside the house.
If this is accurate, and if it’s also acceptable to include uncorroborated information in warrant applications, this means that the bar for approving government spying against domestic political opponents is significantly lower than most Americans have been led to believe.
A former government official, having read the Kerr argument, writes via email:
In meth cases, the judges all know the informants are dirtbags. But as Kerr admits, context is everything in these fact determinations. It’s hardly irrelevant that one presidential campaign is being spied on with the collusion of the existing administration and its candidate. Perhaps prosecutors should be mindful of their high ethical obligations in such a unique case. After all, there is the small matter of the credibility not only of law enforcement but the entire democratic process riding on it.
The Democrats on the Intelligence committee seem eager to release their own memo so perhaps we’ll learn more, but based on today’s release it appears either that the Obama administration engaged in historic abuse or that the FISA court cannot be trusted to protect our liberties, or perhaps both.
Readers concerned about the government’s surveillance authority may be interested to know about one current member of the Intelligence committee who began focusing on this issue all the way back in the George W. Bush administration.
In March of 2007, he announced that he was “deeply troubled” by what he called “abuses of authority” by the FBI in acquiring personal information on U.S. citizens. Over the years, he urged various restrictions on the ability of the executive branch to get information on Americans’ phone calls. In order “to protect privacy and increase transparency” he sought in various ways to reform the Foreign Intelligence Surveillance Court—the very court that approved the electronic surveillance of a Trump associate for reasons that are still not entirely clear.
Way ahead of the news, this particular lawmaker specifically introduced the “Ending Secret Law Act” which according to a press release from his office, “would require the Attorney General to declassify significant Foreign Intelligence Surveillance Court (FISC) opinions, allowing Americans to know how the Court has interpreted” its legal authorities.
This lawmaker said that his legislation “will help ensure we have true checks and balances when it comes to the judges who are given the responsibility of overseeing our most sensitive intelligence gathering and national security programs.”
His name is Adam Schiff, and he is now the ranking member on House Intelligence. But oddly he doesn’t seem to want to take credit for his early concern for civil liberties.