FISA court slams FBI over surveillance applications, in rare public order

In a rare public order Tuesday, the chief judge of the Foreign Intelligence Surveillance Court [FISC] strongly criticized the FBI over its surveillance-application process, giving the bureau until Jan. 10 to come up with solutions, in the wake of findings from Justice Department Inspector General Michael E. Horowitz.

The order, from the court's presiding judge Rosemary M. Collyer, came just a week after the release of Horowitz's withering report about the wiretapping of former Trump campaign adviser Carter Page, as part of former Special Counsel Robert Mueller's investigation into Russian interference in the 2016 presidential election.

"The FBI's handling of the Carter Page applications, as portrayed in the [Office of Inspector General] report, was antithetical to the heightened duty of candor described above," Collyer wrote in her four-page order. "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."

Roberts appoints a real piece of work as her replacement.Some of his rulings:

1.New Hampshire latest of three states to have Medicaid work requirements blocked by federal judge (2019)

New Hampshire’s Medicaid work requirements were blocked on July 29, 2019, by Judge James Boasberg of the United States District Court for the District of Columbia. Broasberg previously blocked similar Medicaid work requirements in Kentucky and Arkansas on March 27, 2019.[9][10]

The Trump administration announced in January 2018 that it would allow states to implement work requirements for Medicaid recipients through Section 1115 waivers.[11]

The United States Department of Health and Human Services (HHS) approved Medicaid work requirement waivers in New Hampshire, Arkansas, and Kentucky that would have required individuals to complete between 80-100 hours of paid or volunteer work each month—depending on the state—in order to receive benefits. Broasberg set aside each of the states’ work requirements on the grounds that HHS’ approval of the plans was arbitrary and capricious due to the agency’s failure to adequately analyze the scope of the prospective loss in Medicaid coverage recipients.[9][10]

Broasberg declined to apply Chevron deference, which compels a federal court to defer to an agency’s reasonable interpretation of a statute, in either of the cases. He argued that the agency’s interpretation of the Medicaid Act, which requires HHS to approve waivers “likely to assist in promoting the objectives [of the Act],” was unreasonable because it didn’t reflect Medicaid’s core objective of providing medical assistance to those unable to afford it.[12]

As of August 9, 2019, HHS had approved work requirements in six other states and seven waiver applications were pending, according to a report from the Kaiser Family Foundation.[13]

2.Judge rescinds approval of changes to Kentucky’s Medicaid program (2018)

On June 29, 2018, a federal judge barred implementation of a series of changes to Kentucky’s Medicaid program, including the imposition of work or community engagement requirements for Medicaid recipients.[14] Judge James Boasberg of the United States District Court for the District of Columbia found that the Department of Health and Human Services (HHS) had failed to consider whether the changes (referred to as the Kentucky HEALTH plan) “would in fact help the state furnish medical assistance to its citizens, the central objective of Medicaid.” Boasberg rescinded approval of the program, which had been granted by HHS on January 12, 2018, and ordered the department to review the matter further.[15]

Seema Verma, administrator of the Centers for Medicare and Medicaid Services, issued the following statement in response to the ruling: “Today’s decision is disappointing. States are the laboratories of democracy and numerous administrations have looked to them to develop and test reforms that have advanced the objectives of the Medicaid program. The Trump Administration is no different. We are conferring with the Department of Justice to chart a path forward.”[16]

Elizabeth Lower-Basch, director of income and work supports at the Center for Law and Social Policy, praised the ruling: “The court made the right decision. It found that HHS did not even consider the basic question of whether [Kentucky’s program] would harm the core Medicaid goal of providing health coverage, and it prohibits Kentucky from implementing it until HHS makes such an assessment.”[17]

On July 1, 2018, the administration of Governor Matt Bevin (R) announced via email that dental and vision benefits for approximately 460,000 Medicaid recipients would end effective July 1. “When Kentucky HEALTH was struck down by the court, the ‘My Rewards Account’ program [i.e., the program, established by the Kentucky HEALTH plan, under which Medicaid expansion recipients paid for dental and vision coverage] was invalidated, meaning there is no longer a legal mechanism in place to pay for dental and vision coverage for about 460,000 beneficiaries [covered under Medicaid expansion] ... As such, they no longer have access to dental and vision coverage as a result of the court’s ruling.” This did not apply to traditional Medicaid recipients, such as pregnant women, children, and the disabled. Rep. John Yarmuth (D-Ky.) criticized the action and announced that his office was seeking an opinion from the Centers for Medicaid and Medicaid Services (CMS) on its legality: “We don’t think [Bevin] can do that. We checked with CMS — they said they don’t know if he can do that.”[18]

3.Judge rules against detaining asylum seekers for more than seven days (2018)

On July 2, 2018, Judge Boasberg issued a preliminary injunction barring the federal government from detaining asylum seekers at five U.S. field offices in Detroit, El Paso, Los Angeles, Newark, and Philadelphia. Boasberg ruled that U.S. Immigration and Customs Enforcement (ICE) violated its own policy of granting a hearing or releasing asylum seekers within seven days if they have established a credible fear of persecution in their native country. Boasberg ordered the government to release or grant hearings for more than 1,000 asylum seekers who had been detained for more than seven days. He also said that while the lawsuit was ongoing, ICE could not detain asylum seekers for more than seven days without providing written explanations for an individual’s detention following a personalized review of their claim.[19]

The ruling responded to a lawsuit, Damus v. Nielsen, brought by the American Civil Liberties Union (ACLU) in March 2018 on behalf of nine detained asylum seekers. Senior staff attorney for the ACLU’s Immigrants’ Rights Project, Michael Tan, said the ruling “means the Trump administration cannot use indefinite detention as a weapon to punish and deter asylum seekers.” The Justice Department did not respond to requests for comment.[19]

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