Re Accuracy Concerns Regarding FBI Matters Submitted to the FISC [pdf](fisc.uscourts.gov)
fisc.uscourts.gov
Re Accuracy Concerns Regarding FBI Matters Submitted to the FISC [pdf]
https://www.fisc.uscourts.gov/sites/default/files/MIsc%2019%2002%20191217.pdf
35 comments
I only wish this is how we would treat every case for a warrant. But it is not [1].
For us regular folk, this is Franks v. Delaware. To be “material,” a lie or omission has to change the result. So, if the omitted information were added, or the lie deleted, the remainder of the information has to be insufficient to get the warrant. The problem is that the standard (usually probable cause) is so easy to meet that it can be met even with the lie deleted, or omitted information included. So it’s rare for even a blatant lie or deceitful omission to be material, and thus overturn the warrant.
If, on the other hand, you lie to the government...
[1] https://en.wikipedia.org/wiki/Franks_v._Delaware
For us regular folk, this is Franks v. Delaware. To be “material,” a lie or omission has to change the result. So, if the omitted information were added, or the lie deleted, the remainder of the information has to be insufficient to get the warrant. The problem is that the standard (usually probable cause) is so easy to meet that it can be met even with the lie deleted, or omitted information included. So it’s rare for even a blatant lie or deceitful omission to be material, and thus overturn the warrant.
If, on the other hand, you lie to the government...
[1] https://en.wikipedia.org/wiki/Franks_v._Delaware
Besides this particular case, I wonder which other FISA applications were manipulated with exaggerated or fabricated evidence? FISA court is known for rubber-stamping applications, they approve at like a 90% rate thousands of requests to spy on citizens.
Process changes are necessary but only criminal charges are gonna deter future abuse. How is the court supposed to know an email or a 302 was doctored? Process change can't fix that.
Process changes are necessary but only criminal charges are gonna deter future abuse. How is the court supposed to know an email or a 302 was doctored? Process change can't fix that.
It's actually closer to 99%. I think I heard they only rejected one warrant in the last calendar year.
Its surprising that it's taken something of this magnitude for people to realize this the whole idea of the FISC is a very bad idea. I know the original idea was to use against terrorist organizations and individuals who they knew were terrorists, but the extensive use of warrantless searches against US Citizens is a very, very dangerous thing.
Its surprising that it's taken something of this magnitude for people to realize this the whole idea of the FISC is a very bad idea. I know the original idea was to use against terrorist organizations and individuals who they knew were terrorists, but the extensive use of warrantless searches against US Citizens is a very, very dangerous thing.
> It's actually closer to 99%.
Folks often bring out this number, as if it is something to be outraged about. What do you think is the rate at which non-secret courts approve warrants?
In Utah, the approval rate is 98%. [1]
Warrants have always been a rubber-stamp process - the main purpose of which is to create a paper trail, and to prevent wide-reaching fishing expeditions.
[1] https://www.sltrib.com/news/2018/01/14/warrants-approved-in-...
Folks often bring out this number, as if it is something to be outraged about. What do you think is the rate at which non-secret courts approve warrants?
In Utah, the approval rate is 98%. [1]
Warrants have always been a rubber-stamp process - the main purpose of which is to create a paper trail, and to prevent wide-reaching fishing expeditions.
[1] https://www.sltrib.com/news/2018/01/14/warrants-approved-in-...
A paper trail is less useful to the public when every document is classified. There is little reason to suspect that the FISA court has prevented "wide-reaching fishing expeditions".
All currently known evidence indicates that the FISA-stamped warrants that were sent out to tech companies were targeted, in that they identified particular individuals that should be surveilled.
So, yes, FISA did seem to accomplish one of the two purposes of warrants. I agree that a secret paper trail isn't particularly useful.
So, yes, FISA did seem to accomplish one of the two purposes of warrants. I agree that a secret paper trail isn't particularly useful.
I consider an investigation to be "a fishing expedition" whenever there is no good reason at the beginning of the investigation to suspect that the target has committed a particular crime. Every time a FISA warrant has been publicized, it has fit that criterion. Following Cardinal Richelieu, any person subjected to enough surveillance may be convicted of something.
You may think that way, but judges don't.
If you are a gang leader, and you call someone twice a day, any judge will absolutely sign a wiretap warrant targeted at the person you are calling.
If you are a gang leader, and you call someone twice a day, any judge will absolutely sign a wiretap warrant targeted at the person you are calling.
At a minimum we gotta get rid of the 2 or 3 hops permitted of the surveillance; theoretically, most of the campaign's communications could have been swept up in the collection process and examined by investigators.
More about the '2 or 3 hops':
https://www.nbcnews.com/think/opinion/fbi-s-secret-warrant-s...
More about the '2 or 3 hops':
https://www.nbcnews.com/think/opinion/fbi-s-secret-warrant-s...
NPR was asking a former FBI person exactly that allusion and their response was pretty much, “because few mistakes are made”. Yeah, I’m sure...
The only somewhat encouraging thing to me in the IG report was that the FBI's lawyers refused to submit the FISA application initially because there wasn't enough meat to the suspicions about Carter Page. They reversed their decision only when the investigators decided to credulously include the allegations from the Steele dossier. The optimistic take on this would be that maybe it's a big black eye to your career if you get rejected by the FISC, so they're careful about what they take there.
Of course, it was an FBI lawyer who later doctored an email from the CIA to say Carter Page was not working with the CIA when the email actually said he was, allowing them to renew his surveillance two more times. But hopefully that guy goes to jail.
Of course, it was an FBI lawyer who later doctored an email from the CIA to say Carter Page was not working with the CIA when the email actually said he was, allowing them to renew his surveillance two more times. But hopefully that guy goes to jail.
I don't find this particular case all that illustrative. These folks were palling around with known foreign intelligence assets from a country whose government is definitely a hostile aggressor. I'd be more sympathetic to some low-level drug dealer scooped up through parallel-reconstruction. Still, even scum like Carter Page deserve their rights and protections.
> scum like Carter Page
All I know about Carter Page is he was falsely painted as a spy for Russia by the FBI and compliant media organizations for several years, even after the FBI knew he had been working with the CIA. Not sure what makes him the scum in that equation.
All I know about Carter Page is he was falsely painted as a spy for Russia by the FBI and compliant media organizations for several years, even after the FBI knew he had been working with the CIA. Not sure what makes him the scum in that equation.
There is a frenzy of attorneys trying to attach themselves to Mr. Page's multimillion-dollar lawsuit for slander and libel. All of the big news firms will be paying for his vacation homes.
It's impossible to know how illustrative it is because FISA warrants are rarely declassified or confirmed to exist except to the intel committees and the agencies themselves.
Perhaps I was offering my opinion and not some sort of eternal truth.
I hope someone goes to jail. How else will this deter future abuses?
Americans are tired of people in positions of real power receiving preferential treatment.
As far as I am concerned the 4th amendment has been mostly stripped to a relic of the past. If you want protection from search/seizure then you must educate yourself on how to guarantee it absolutely as a matter of technology.
From the first page:
> A finding of probable cause to believe that a U.S. citizen (or other "United States person" as defined at Section 1803(i)) is an agent of a foreign power cannot be solely based on activities protected by the First Amendment.
> A finding of probable cause to believe that a U.S. citizen (or other "United States person" as defined at Section 1803(i)) is an agent of a foreign power cannot be solely based on activities protected by the First Amendment.
There are very few things in life that will fuck up your day faster than lying to a Federal Judge, example N.
[N-1] https://twitter.com/obarcala/status/1192193014350991360
[N-2] https://arstechnica.com/tech-policy/2013/05/prenda-hammered-...
.....
[N-1] https://twitter.com/obarcala/status/1192193014350991360
[N-2] https://arstechnica.com/tech-policy/2013/05/prenda-hammered-...
.....
If only that were true. Read some search warrant application affidavits sometime. Especially technical ones.
It's different if you live in the Beltway, attend the same cocktail parties as the federal judge you're lying to, and have children who attend the same private schools.
I presume FISA courts are in D.C., so I suppose this could be true. But judges, ADAs, Federal justice employees live in, and work closely together in, hundreds of localities across the USA. No ADA/Agent in any of them ever have stories that start with "A judge found out I (even sorta kinda) lied" that ended well for everyone involved.
DoJ lies all the time. The judges know this. The system does not exist to police itself.
Those are two different systems, so it's not clear what you are trying to say, other than, like, burn it all down man.
In the public courts, DoJ lies with impunity. It's very difficult for defendants to escape with their freedom; holding federal prosecutors responsible for their misdeeds is the last thing on their minds.
In the FISA courts, DoJ lies with impunity. The judges occasionally throw a warrant back and tell them to try harder, but mostly DGAF, because no publicity. Now there is publicity, and suddenly a judge cares...
I am an anarchist, so I oppose all arbitrary authority. If burning will solve these problems, then let's burn. If not, let's do something else.
In the FISA courts, DoJ lies with impunity. The judges occasionally throw a warrant back and tell them to try harder, but mostly DGAF, because no publicity. Now there is publicity, and suddenly a judge cares...
I am an anarchist, so I oppose all arbitrary authority. If burning will solve these problems, then let's burn. If not, let's do something else.
I was under the impression the judges who are on the court are kept secret?
I thought it was cool that this appeared on the front page for me even though it was already [flagged]. I can actually see why it's flagged; of mostly political import with very little technical detail.
It’s pretty obviously just flagged for violating the permitted narratives. If this document is ‘of mostly political import’, then this[0] one most certainly is.
Though I think it’s pretty funny how this scandal has mutated from a “far-right conspiracy theory” to “FISA courts are obviously being political”. Really this is just a CYA move to heap all the blame onto the FBI, but it’s hard to try and claim this isn’t relevant when it’s sharing the front page with threads like this[1], where the top comment thread is discussing FISA courts as a solution to litigating against the government.
[0] https://news.ycombinator.com/item?id=19762811
[1] https://news.ycombinator.com/item?id=21826567
Though I think it’s pretty funny how this scandal has mutated from a “far-right conspiracy theory” to “FISA courts are obviously being political”. Really this is just a CYA move to heap all the blame onto the FBI, but it’s hard to try and claim this isn’t relevant when it’s sharing the front page with threads like this[1], where the top comment thread is discussing FISA courts as a solution to litigating against the government.
[0] https://news.ycombinator.com/item?id=19762811
[1] https://news.ycombinator.com/item?id=21826567
I mostly agree, but assuming you're talking about this [0] I think that's an uncharitable reading.
[0] https://news.ycombinator.com/item?id=21829759
[0] https://news.ycombinator.com/item?id=21829759
I need to read this and find the context because I am unsure about how to feel about this.
An FBI lawyer changed an email that said Carter Page was a source to say Page was "not a source"
More to the point, Page was a source to the CIA, and had been for years, by reporting on his meetings with Russians. The FBI knew this, but specifically altered evidence to hide this from FISA when seeking a warrant to spy on him (and, thus, the Trump campaign).
> The FBI's handling of the Carter Page applications, as portrayed in the OIG report, was antithetical to the heightened duty of candor described above. The frequency with which representations made by FBI personnel turned out to be unsupported or contradicted by information in their possession, and with which they withheld information detrimental to their case, calls into question whether information contained in other FBI applications is reliable. The FISC expects the government to provide complete and accurate information in every filing with the Court. Without it, the FISC cannot properly ensure that the government conducts electronic surveillance for foreign intelligence purposes only when there is a sufficient factual basis.