Senate documents show FBI trying to suppress release of...

Republican senators Charles Grassley (Iowa) and Lindsey Graham (S.C.) on Monday released a letter they sent to the FBI asking that ex-British spy Christopher Steele be investigated for possible criminal violations. Steele authored the anti-Trump "dossier" that was full of false or unverified information, provided to the FBI and leaked to the press in 2016.

The FBI secretly used the Steele dossier to convince a Foreign Intelligence Surveillance Court to permit one of the most sensitive invasions of privacy against a U.S. citizen: electronic surveillance by the government. Top Obama and Trump officials signed four wiretap applications against Trump adviser Carter Page starting in fall of 2016 - a month before the presidential election - relying, in part, on the dossier. That's according to House Republicans who, on Friday, released a summary of classified documents they reviewed.

The FBI's reliance on the anti-Trump dossier is questionable because while the judge was reportedly told the author had political motivations, the FBI allegedly did not disclose who funded it: Donald Trump's chief opponent in the presidential race - the Hillary Clinton campaign - and the Democratic National Committee.

Not only that, the newly-released criminal referral says Steele actually incorporated information that was funneled to him through Clinton associates and the U.S. State Department where Clinton had served as Secretary of State from 2009 to early 2013. In a memo dated Oct. 19, 2016, Steele wrote that a foreign source who was in touch with "a friend of the Clintons" passed him material through a U.S. State Department connection.

Even more problematic, the FBI may have violated strict rules - Woods Procedures - that forbid it from presenting even a single unverified fact to the special court, let alone a lengthy dossier full of them.

The criminal referral unveiled today says Steele's possible violations involve claims he reportedly made about his dealings with the media. Conflicting accounts arose as part of a lawsuit in Great Britain where Steele is defending a libel claim made by a Russian businessman. Steele publicly accused him of hacking the Democratic Party. The criminal referral is not a formal accusation of wrongdoing against Steele, but a request for an investigation.

In the bigger picture, the criminal referral highlights conflicts of interest questions emerging in the wide-ranging investigations:

The Steele criminal referral in essence asks the FBI to investigate a source with whom FBI officials collaborated, and whose evidence they used in a fashion that's under congressional investigation.

The referral was addressed to Deputy Attorney General Rod Rosenstein who himself signed at least one of the questionable wiretap applications using the Steele dossier.

It was also addressed to FBI Director Christopher Wray whose choice for general counsel, Dana Boente, also signed at least one of the wiretap applications. Boente replaced James Baker, a confidante of former FBI Director James Comey, who signed three of the wiretap applications. (Baker was reassigned in December after questions arose about leaks promoting the anti-Trump material in the dossier. Last June, Comey admitted that he secretly orchestrated a leak to the press to prompt a special counsel investigation of any Trump-Russia ties. Robert Mueller was appointed two days later.)

It won't even publicly admit it screwed up with this warrant. It defends it as righteous.

Yes, and no. The FISC was lied to and can be given a judicial pass except for the part where it is alleged that they FISC judge knew the request had political motivation. At that point he stopped being a judge and became a pundit. Once he signed the warrant with that knowledge, he committed a violation of the FISA and should be held accountable. There is no doubt in my military mind that he will be protected by the other 10 judges, but he should no longer be on the court. WRT the FBI, I concur 100%.

-- The FISC was lied to and can be given a judicial pass except for the part where it is alleged that they FISC judge knew the request had political motivation. --

How would the judge know the application was politically motivated? The fact that the Steele dossier was politically motivated doesn't make it false, so from the court's perspective, the relevant parts of the dossier had been verified before they were presented in the application.

I totally agree, if the judge thinks the application is politically motivated, he has an obligation. Tough to discharge though, because the cop shop that is guilty is the same cop shop charged with handling criminal referrals. There is no evidence that the FBI polices itself. Plus, FISC is entirely classified.

Since FISC is entirely classified, we have no idea what is par for the course. What is routine.

I suspect that part of the reason top FBI officials were so upset about the Nunes memo being released is that they know that their Carter FISA application was not that unusual. Now high profile but not unusual. In other words, the FBI likely routinely seeks and obtains unwarranted warrants.

How would the judge know the application was politically motivated?

Personally, I had not heard so my opinion comes from the 3rd paragraph of the story:

The FBI's reliance on the anti-Trump dossier is questionable because while the judge was reportedly told the author had political motivations, the FBI allegedly did not disclose who funded it:

If this is true, then the judge should have, at the very least, put the request on hold until unbiased evidence was presented. The 1st warrant request (presented to a different judge) was denied. Whatever the denial was based upon should have given the second judge a basis for framing the follow-on request.

-- If this is true, then the judge should have, at the very least, put the request on hold until unbiased evidence was presented. --

In principle, the fact that source is politically biased doesn't preclude it being factual. The FBI protocol is to verify every statement presented to the judge. It is the FBI's bias that has been hidden from the judge, as well as the FBI taking advantage of the judge making a false assumption that the FBI follows its own rules.

-- In other words, the FBI likely routinely seeks and obtains unwarranted warrants. --

I'd say that's a reasonable conclusion. In this case, the FBI is stonewalling and lying all over the place, giving every reason to distrust it across the board.

Secret court + dirty cops. What could go wrong?

In principle, the fact that source is politically biased doesn't preclude it being factual.

True, but the non-partisan basis of the FISC should preclude anything politically motivated. The FISA is designed to investigate criminal activity involving foreign agents. Nothing in the dossier reflects this. Page was a minor player in the Trump campaign and nothing in the dossier even hinted at him being involved with a foreign agent. So the entire warrant and subsequent surveillance is illegal (IMHO).

-- ... but the non-partisan basis of the FISC should preclude anything politically motivated. The FISA is designed to investigate criminal activity involving foreign agents. --

The criminal aspect of the target is secondary and not required. FISA exists to produce warrants where none are required. The administration can undertake surveillance for foreig intelligence purposes without a warrant. The statutory FISA structure exists to make the public believe this power has independent oversight.

I would not be so quick to believe FISC is apolitical. From my point of view, all branches and all players in the federal government are political, and aim to grow their power.

My point though, is that between FISC and the FBI, there is a set of working assumptions supposedly enforced by institutional controls. The FBI is responsible to verify information before using it to obtain a warrant. The DOJ is the oversight for this. Only after FBI and DOJ agree does the application go to FISC.

FISC mistake, like the public's, is having trust. Better to assume the people asking for soemthing are liars, because chances are, they are.

>> In other words, the FBI likely routinely seeks and obtains unwarranted warrants.<<

Conservative Treehouse has an article up about Sharyl Attkisson noting something interesting about the memo itself.

The opening of the second paragraph reads: “On October 21, 2016, DOJ and FBI sought and received a FISA probable cause order (not under Title VII) authorizing electronic surveillance on Carter Page from the FISC. “

Ms. Attkisson draws attention to the phrase in parentheses, “not under Title VII”. That implies that this was not a normal FISA request, which would fall under Title VII.

Now, whether she’s jumping to a conclusion or not, I don’t know, but she then asserts that it must have been issued under Title I, not Title VII. Title I apparently covers surveillance of an actual spy and authorizes complete surveillance of that spy’s life, from beginning to end, and all contacts in between, etc. In other words, it’s scope is unlimited.

If true, that would have given the FBI a way to justify surveilling anyone that had ever dealt with Page including, obviously, the Trump campaign. That would be explosive. Further, I find myself wondering if the unusual wording and the use of parentheses of the insertion (not under Title VII)” might have been the result of the FBI/DOJ’s objection to the original wording, which might have been just “under Title I”, a phrasing that would obviously have drawn everyone’s attention in short order.

Regardless, it’s interesting.

If there is a Tile I and a Title VII, there must be a II, III, IV, V, and VI, right?

Can those be ruled out as inapplicable?

Certainly, it cannot truly be unlimited can it? For example, Carter Page attends a party with 30 people. After the party, can the FBI just start electronic surveillance of all those who attended the party? Indefinitely?

The criminal aspect of the target is secondary and not required.

Not quite:

...establishes procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between "foreign powers" and "agents of foreign powers" suspected of espionage or terrorism

I believe espionage and terrorism are criminal acts, but the primary requirement is that the basis must be regarding foreign agents. Either with or without court orders, warrants are based on the target being the foreign agent. This warrant appears to violate that.

FISA exists to produce warrants where none are required.

Not sure how you meant this but FISA exists to collect intelligence on foreign agents, which requires a surveillance warrant. Further, the court is mandated to operate in a non-adversarial role which to me indicates non-partisan but I could be wrong in the legal definition of that.

The FBI is responsible to verify information before using it to obtain a warrant. The DOJ is the oversight for this. Only after FBI and DOJ agree does the application go to FISC.

Agreed, although the NSA can be involved. Given what you stated it is quite clear that the process is tainted and guilty as charged in accordance with what the Trump administration has cited as being biased. That should cause the issuing judge to revoke the warrant and put the surveillance under judicial review.

-- Not sure how you meant this but FISA exists to collect intelligence on foreign agents, which requires a surveillance warrant. --

You are familiar with the so-called "Keith" case from 1972? With FISA section 1802? The history of FISA, what preceded it? What provoked it into existence?

-- That should cause the issuing judge to revoke the warrant and put the surveillance under judicial review. --

The warrant IS (or was, it's expired now) under judicial review. That's what FISA is for, to provide a warrant where a purpose of the survelliance is to gather foreign intelligence. This has two benefit, in case a warrant will be helpful in any future criminal prosecution (rare), and to make the public believe government surveillance is essentially always done with a warrant.

Even you were under the mistaken belief that "collect intelligence on foreign agents, which requires a surveillance warrant."

Even you were under the mistaken belief that "collect intelligence on foreign agents, which requires a surveillance warrant."

They do, unless communications begin or end in a foreign country. This warrant has nothing to do with that, from what I can surmise, as the warrantless surveillance pertains to the NSA and does not require FISC supervision.

50 U.S.C. § 1802(a)(1)(A) of this Act specifically limits warrantless surveillance to foreign powers as defined by 50 U.S.C. §1801(a) (1),(2), (3)

You are familiar with the so-called "Keith" case from 1972?

Nope. I cannot get to the Cornell law library from work but I will look into it later.

With FISA section 1802?

Limitation on electronic surveillance and warrantless surveillance.

The history of FISA, what preceded it? What provoked it into existence?

FISA was enacted in 1978 as a result of Nixon's use of foreign agencies as political attack vectors.

Suppose the president undertook surveillance for foreign intelligence, in violation of FISA. That is, without a warrant, and on purely domestic communications. Or a real life case from 1994, tossing somebody's house without a warrant, in violation of FISA.

Suppose further that the case is litigated as a violation of FISA. Do you think the law would be upheld, or would the "illegal" activity be allowed, found to be an impermissible legislative restriction on the power of the executive?

I do agree with your read of FISA, by the way. I disagree that the warrantless part is limited to NSA. NSA is collecting purely domestic traffic without a warrant, all of the time. In a typical marvel of legal fiction, the law view this as "not surveillance."

In your example, the President would be in violation of USC 50. FISA would still be legal (at least, according to 2 lower court rulings) as the President did not submit a request for FISA warrants. The exception would be that active intelligence lead the Executive branch to believe a credible threat of terrorist attack was imminent. Or, if a non-US citizen was considered a "lone wolf" and in preparation for a terrorist act on domestic soil.

I do agree with your read of FISA, by the way. I disagree that the warrantless part is limited to NSA.

My apologies if I implied that. I was merely suggesting that NSA also does warrantless surveillance.

United States v. United States District Court, 407 U.S. 297 (1972) ["Keith" case]

Clinton Claimed Authority to Order No-Warrant Searches - Byron York, 2005.

-- FISA was enacted in 1978 as a result of Nixon's use of foreign agencies as political attack vectors. --

The abuses predate Nixon. Long, but concise, Church Commission Volume II

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