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Secret Court Slaps FBI Down Over Portions of Its Foreign Surveillance Program

AP Photo/Jose Luis Magana


The FBI is not having a good week. Well, actually, it’s been a while since the FBI was reported on in a positive light. We have two top officials, James Comey and Andrew McCabe, being fired for cause for their actions during the Trump administration. Comey’s memos from meetings he had with the president were given to a close friend with the expressed intent of leaking them to the press in order to get a special counsel probe going into the Russian collusion nonsense. McCabe, the ex-deputy director, was fired for leaking sensitive information to the press and lying about it to investigators. And one of their top press people had received gifts from reporters and lied to investigators about that as well. The FBI used the unverified Trump dossier (aka Steele dossier) that was a political opposition research project funded by the Clinton campaign and Democrats as credible evidence to secure a spy warrant on Carter Page, Trump’s former campaign foreign policy adviser. 


The FISA program is notorious for being, well, very permissive regarding its warrants which are issued by a secret court and almost always approved. Well, a federal court struck down some parts of the program, noting some of the practices were unconstitutional (via WSJ):

Some of the Federal Bureau of Investigation’s electronic surveillance activities violated the constitutional privacy rights of Americans swept up in a controversial foreign intelligence program, a secretive surveillance court has ruled.

The ruling deals a rare rebuke to U.S. spying programs that have generally withstood legal challenge and review since they were dramatically expanded after the Sept. 11, 2001, attacks. The opinion resulted in the FBI agreeing to better safeguard privacy and apply new procedures, including recording how the database is searched to detect possible future compliance issues.

The intelligence community disclosed Tuesday that the Foreign Intelligence Surveillance Court last year found that the FBI’s efforts to search data about Americans ensnared in a warrantless internet-surveillance program intended to target foreign suspects have violated the law authorizing the program, as well as the Constitution’s Fourth Amendment protections against unreasonable searches. The issue was made public by the government only after it lost an appeal of the judgment earlier this year before another secret court.

The court concluded that in at least a handful of cases, the FBI had been improperly searching a database of raw intelligence for information on Americans—raising concerns about oversight of the program, which as a spy program operates in near total secrecy.

The October 2018 court ruling identifies improper searches of raw intelligence databases by the bureau in 2017 and 2018 that were deemed problematic in part because of their breadth, which sometimes involved queries related to thousands or tens of thousands of pieces of data, such as emails or telephone numbers. In one case, the ruling suggested, the FBI was using the intelligence information to vet its personnel and cooperating sources. Federal law requires that the database only be searched by the FBI as part of seeking evidence of a crime or for foreign-intelligence information.

In other instances, the court ruled that the database had been improperly used by individuals. In one case, an FBI contractor ran a query of an intelligence database—searching information on himself, other FBI personnel and his relatives, the court revealed.


 This is good news. At the same time, I still don’t know how I feel about secret courts and this FISA program, which has been abused. It was abused to secure that spy warrant against Page. It was not verified based on the glaring inaccuracies in the Trump dossier and yet cited as credible. How much due diligence is done when reviewing such evidence when the government applies for these warrants? The dossier is also a possible reference to the “insurance policy” anti-Trump FBI Agent Peter Strzok mentioned in a series of texts with his mistress, bureau lawyer Lisa Page, during the 2016 cycle. Strzok signed off on the counterintelligence probe into Russian collusion, which became the Mueller investigation and was a key person in the FBI’s analysis into Hillary Clinton’s email server. Two of the most sensitive investigations in recent memory—and these two clowns were a) trashing the president, and b) worried that the FBI might be going too hard on Hillary. Strzok was fired over these texts, which compromised the impartiality and professionalism of the FBI. Page resigned but said that the texts meant what they say, despite Strzok trying to pass them off as a sign of his patriotism. He also tried to downplay the bias angle, which even CNN contributors couldn’t spin.  


The FBI still has a lot of housecleaning to do, but this bit of oversight news is a welcome result. It still doesn’t wash away the alleged FISA abused that occurred during the 2016 election or the reported deep state antics that occurred after Trump won the election. 

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