Archive for the ‘FISA’ category

Investigate This (3)

October 28, 2017

Investigate This (3), Power LineScott Johnson, October 28, 2017

This is why I believe that the dossier took on added importance after the initial denial of a FISA order. We know, or think we do, that the FBI wanted Steele to do additional research. The focus of that research, however, would have to be to establish “reason to believe” that Trump or persons close to his campaign were “agents of a foreign power.” Only that would get them the FISA coverage they wanted. Lacking those, FISA was the quick route, but it required “reason to believe” that Trump or persons close to his campaign were “agents of a foreign power.” Voila the “dossier” as it apparently featured in the successful FISA application in October, the height of the campaign. And then it came to be used in the attempt to nullify the election (the attempted “coup”?).

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Now we know that the Trump Dossier was not just a product funded by Democrats, but was commissioned by the general counsel of the Clinton presidential campaign. After the Trump campaign collusion hysteria fomented by Democrats and their media friends roughly since the election, we learn that Russian disinformation (as it seems to me) disseminated by the friends of Vladimir Putin (i.e., the Russian officials identified by alphabetic descriptors in the dossier) has come to us courtesy of Hillary Clinton herself. Yet John Podesta, Debbie Wasserman Schultz, and campaign general counsel Marc Elias have all denied knowledge, either now or in the past. Whole lotta lyin’ goin’ on. As for Hillary herself, well, “she may or may not have been aware.”

But there is more. Rowan Scarborough has reported that the first of the dossier memos was circulated last year in late June. The first dossier memo is dated June 20, 2016, and cites Sources A (“a senior Russian Foreign Ministry figure”) and B (“a former top level intelligence officer still active in the Kremlin”). Sources A and B tout the collusion scenario. Sources A and B were not out to help Donald Trump, were they? They were out to throw sand in our gears or to help Hillary Clinton.

Former CIA Director John Brennan was a key player in the collusion scenario, but he has left much to implication in his congressional testimony. Brennan has acknowledged, however, that “that there were efforts made by the [FBI] to try to understand whether or not any of the information in that [dossier] was valid.”

Following up on his comments yesterday, our friend with two decades of experience in counterintelligence as an FBI Special Agent writes to add “some additional context that may be be useful.” He writes:

Why was the “dossier” ultimately so important for the anti-Trump conspiracy (if you think of a better way of putting it, let me know)? The reason, I think, is that the use of standard political smears against Trump had proven ineffective. Therefore it became necessary to take it all a step further and to attempt to make some superficially credible allegations of action against the national interest (again, the vague allegations of Mafia ties had fallen flat).

We know that that effort began some time in the late Spring or early Summer of 2016 because an application was made to the FISC in June/July. That application mentioned Trump by name–and was rejected. Why FISA? Because a Title III “wiretap” would have required an actual investigation based on a violation of a real US criminal law and a quite high and specific standard in the application for a court order.

Why, you might ask, was that application even made? Why not rely on the flow of info coming from NSA, which notoriously scoops up virtually all electronic communications? The answer is that Trump and all those close to him were US Persons (USPERs). The NSA targets foreign powers and individuals. If those foreign powers and individuals of concern are in contact with USPERs and, in the judgment of NSA, US counterintelligence (basically, FBI) should know about those USPERs, then NSA informs the FBI.

In my own career, outside FBI headquarters, I only saw a handful of NSA referrals of that sort. They were mostly general in nature. They could perhaps be used to initiate a Preliminary Inquiry (PI) to gain a bit more insight into the nature of the relationship between the USPER and the foreign power or individual — if we judged that advisable based on our own knowledge and experience — meaning that typically the NSA info would not rise to the level needed in order to say that there was “reason to believe” (i.e., for practical purposes, probable cause) that the USPER was an actual agent of a foreign power. That means: no Full Investigation (FI), therefore no FISA.

But in the anti-Trump conspiracy that’s exactly what was needed: FISA coverage, “wiretaps.” There was no time to do the painstaking research on Trump and his associates–they needed FISA and they needed it NOW. They’d already been turned down at least once. The NSA info was essentially useless, because what they really wanted was to get conversations between Trump and his associates here in the US–all USPERs–not international conversations (those were either lacking or harmless). Yes, NSA probably scoops up internal US communications of USPERs, too, but to use it without a FI and without a FISA order would be illegal. Therefore, the “dossier.”

For the conspirators the significance of the “dossier” was that it provided supposed “reason to believe” that Trump or those close to him were “agents of a foreign power,” subject to blackmail or pressure by a foreign power, already cooperating with a foreign power. The ability to claim that most of this “information” was coming via friendly foreign intel services with contacts in Russia added a bit of verisimilitude.

A “dossier” that could provide that sort of “reason to believe” would justify a FI and then FISA coverage. And therefore access to Trump campaign related communications (the extent would be dependent on the nature of the FISA order, who were the USPERs listed as targets–Page for sure, Flynn maybe, etc.). NB: Although they were claiming Trump collusion with Russia, what they were really targeting was campaign communications. By claiming that key people were foreign agents they could collect ALL their domestic communications with anybody.

This is why I believe that the dossier took on added importance after the initial denial of a FISA order. We know, or think we do, that the FBI wanted Steele to do additional research. The focus of that research, however, would have to be to establish “reason to believe” that Trump or persons close to his campaign were “agents of a foreign power.” Only that would get them the FISA coverage they wanted. Lacking those, FISA was the quick route, but it required “reason to believe” that Trump or persons close to his campaign were “agents of a foreign power.” Voila the “dossier” as it apparently featured in the successful FISA application in October, the height of the campaign. And then it came to be used in the attempt to nullify the election (the attempted “coup”?).

 

FULL MEASURE: July 2, 2017 – Surveillance State

July 3, 2017

FULL MEASURE: July 2, 2017 – Surveillance State via YouTube, July 3, 2017

 

Report: House Investigation of Susan Rice Scandal Expanding

April 12, 2017

Report: House Investigation of Susan Rice Scandal Expanding, PJ MediaDebra Heine, April 12, 2017

(Please see also, A Shoe Drops: Obama Administration Spied on Carter Page [Updated] — DM)

(AP Photo/Carolyn Kaster, File)

Fox News reported Tuesday night that members of the House Intelligence Committee have expanded their investigation into the Susan Rice surveillance controversy.

Appearing on The O’Reilly Factor, investigative reporter Adam Housley said the following:

They’re looking into allegations where Americans including politicians have possibly been unmasked and had their information collected into the files, similar to what they did to the Trump team.

Housley also said that both the House and Senate investigations are being stonewalled:

They say the FBI is being very difficult. We’re told [investigators] just want to know about the unmasking. How frequent was this? Who was doing it? Why were they being unmasked?

Housley added:

[A Committee member says the FBI is] going to have to turn everything over or we’re not going to authorize the congressionally approved 702 program which allows them to do this in the first place. This investigation is full-blown.

Section 702 of the Foreign Intelligence Surveillance Act, or FISA, is up for reauthorization in 2017. The program surveils non-U.S. persons believed to be located outside the United States, incidentally sweeping up the communications of Americans as well, in order to acquire foreign intelligence.

O’Reilly asked Malia Zimmerman, an investigative reporter working with Housley, if the FBI was investigating the case. Zimmerman answered:

There’s a big question about the FBI’s role in this and there’s concern in the House about generally how the FBI is handling this case.

She added that FBI Director James Comey has yet to come back to the Hill to answer the 100 questions the House Intelligence Committee wants answered:

The FBI claims to be “preparing the information,” but it’s been four weeks, Bill.

O’Reilly suggested getting Attorney General Jeff Sessions involved, “because he’s Comey’s boss.”

Housley said they were making progress on the story, but because of the sensitive and classified nature of the information, it’s been difficult work.

Zimmerman added that some of the whistleblowers who have been talking to them may come forward and provide testimony to the House Intelligence Committee:

That would really start to expand this investigation even further.

A Shoe Drops: Obama Administration Spied on Carter Page [Updated]

April 12, 2017

A Shoe Drops: Obama Administration Spied on Carter Page [Updated], Power Line, John Hinderaker, April 11, 2017

[E]ver since the Inauguration the Democratic Party, especially its press wing in Washington and New York, has relentlessly pushed the Trump/Russia story. What story? There isn’t one. But that hasn’t stopped Democrats in the press from talking about little else for the last three months.

And yet, all along, the Democrats have known that their spying produced nothing. This whole story is almost unbelievably sordid. The relevant Congressional committees should investigate thoroughly, and criminal prosecutions should follow where laws have been broken.

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I assume this Washington Post story is true: “FBI obtained FISA warrant to monitor former Trump adviser Carter Page.” It confirms what has been sporadically reported since late last year, that the Obama administration sought and ultimately received a FISA order to spy on at least one associate of Donald Trump. So Trump’s famous tweets were, in substance, true.

The FBI obtained a secret court order last summer to monitor the communications of an adviser to presidential candidate Donald Trump, part of an investigation into possible links between Russia and the campaign, law enforcement and other U.S. officials said.

Do the leaks come from the same Obama administration holdovers who have leaked in the past, trying to get ahead of disclosures that will confirm that President Trump’s suspicions were correct? Or do they come from officials appointed by Trump? I don’t know, but the Post’s illicit sources are pretty much always Democrats.

The FBI and the Justice Department obtained the warrant targeting Carter Page’s communications after convincing a Foreign Intelligence Surveillance Court judge that there was probable cause to believe Page was acting as an agent of a foreign power, in this case Russia, according to the officials.

That’s a strong charge, but I doubt that there is evidence to support it. Carter Page “worked in Moscow for Merrill Lynch a decade ago and … has said he invested in Russian energy giant Gazprom.” He never had any official association with the Trump campaign, but has been referred to as an “informal adviser.” He has asked to testify before a Congressional committee to clear his name.

The current leakers, whoever they are, described the Obama administration’s FISA application in detail. Or else the Post reporters have seen it.

The government’s application for the surveillance order targeting Page included a lengthy declaration that laid out investigators’ basis for believing that Page was an agent of the Russian government and knowingly engaged in clandestine intelligence activities on behalf of Moscow, officials said.

Among other things, the application cited contacts that he had with a Russian intelligence operative in New York City in 2013, officials said. Those contacts had earlier surfaced in a federal espionage case brought by the Justice Department against another Russian agent. In addition, the application said Page had other contacts with Russian operatives that have not been publicly disclosed, officials said.

The Obama administration was already trying, last Summer, to find evidence that Russia’s government was “meddling” in our presidential election:

The application also showed that the FBI and the Justice Department’s national security division have been seeking since July to determine how broad a network of accomplices Russia enlisted in attempting to influence the 2016 presidential election, the officials said.

I find it hard to believe that Russia’s rulers, from Vladimir Putin on down, wanted to help elect a president who vowed to rebuild America’s dwindling military strength, and to put America first, in place of an administration that was consistently supine in the face of Russian aggression and was borderline anti-American. Possibly Putin and his advisers are that dumb, but I doubt it.

In any event, the Obama administration failed to find any evidence that anyone associated with Trump was somehow cooperating with the Russians–not even a “junior member of the [Trump] campaign’s foreign policy advisory group,” as Page described himself. If they had, we would have learned about it long before now.

We haven’t heard the last of this story, but for the moment one thing is clear: a great many people, inside and outside of the media, owe President Trump an apology. Assuming that President Obama knew of, and approved, the FISA application–a safe assumption, I think–Trump’s much-reviled tweet was true:

Obama had my “wires tapped” in Trump Tower just before the victory. Nothing found.

How much of this Trump knew all along is, at this point, unclear.

UPDATE: We are now starting to get a picture of how sinister this whole Democratic Party misinformation campaign is. Through the last half of 2016, the Obama administration was desperately searching for evidence of some link between the Trump presidential campaign and Russia. They went to the length of seeking (twice, reportedly) and finally obtaining a FISA order that allowed them to spy on at least one insignificant Trump associate.

In addition, we now know that Susan Rice headed up an operation whereby raw NSA intelligence was sifted for names of Trump associates, no doubt in hopes of uncovering dirt of some sort.* And we also know that these efforts came up dry. The Obama administration found no compromising information about Trump or any of his associates.

Nevertheless, ever since the Inauguration the Democratic Party, especially its press wing in Washington and New York, has relentlessly pushed the Trump/Russia story. What story? There isn’t one. But that hasn’t stopped Democrats in the press from talking about little else for the last three months.

And yet, all along, the Democrats have known that their spying produced nothing. This whole story is almost unbelievably sordid. The relevant Congressional committees should investigate thoroughly, and criminal prosecutions should follow where laws have been broken.

It is time to get to the bottom of the Obama spy scandal.
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* All of this is reminiscent of Watergate, in this sense: after the fact, no one could figure out why the Plumbers bugged the Democratic National Committee, given that President Nixon was obviously going to be re-elected anyway. (The answer to that question may still be unknown, but that is another story.) Similarly, Barack Obama and his minion Susan Rice no doubt were confident that Hillary Clinton would win the election and serve Obama’s third term. Yet, they weren’t taking any chances.

Trump’s wiretapping tweets, the media and reality

March 7, 2017

Trump’s wiretapping tweets, the media and reality, Rebel Media via YouTube, March 6, 2017

(A very good summary of the information now available. — DM)

 

#ObamaGate Is a Lot More than a Hashtag

March 6, 2017

#ObamaGate Is a Lot More than a Hashtag, PJ MediaRoger L Simon, March 5, 2017

(Please see also, Yes, There Could Be Serious Legal Problems if Obama Admin Involved in Illegal Surveillance. — DM)

obama_security_risk_feature_4-11-16-1-sized-770x415xt

If I were a Democrat, I’d be afraid.  I’d be very afraid.

Forget the usual smokescreen of hyper-partisan blather from Chuck Schumer on “Meet the Press” or the myriad calls for Trump’s head from the usual press suspects and consider the situation:  Congressional committees, the FBI, not to mention numerous avid media organizations and who knows who else (NSA? CIA? ASPCA?) have been investigating putative Trump-Russia collusion for some time now and come up with… exactly nothing.

Are they likely to come up with something of significance at this point?  Almost certainly not.

So now we have Trump’s bold, brash, “unhinged” Twitter accusations that Obama wiretapped him.  This came after Mark Levin, Breitbart, Andrew C. McCarthy, Louise Mensch and others I’ve forgotten about or am unaware of reported about two appeals to FISA courts (one denied last summer and one approved in October) for permission to tap phones in Trump Tower. Did they happen?

It seems that tapping of some sort actually occurred because it was virtually acknowledged  in tweets from Obama speechwriter Jon Favreau,  who sprang to action only hours after Trump tweeted, writing : “I’d be careful about reporting that Obama said there was no wiretapping. Statement just said that neither he nor the WH ordered it.” Kevin Lewis, a spokesman for the former president, had almost simultaneously declared:  “Neither President Obama nor any White House official ever ordered surveillance on any U. S. citizen.”  Ordered?  That’s what we used to call plausible deniability and now is known as a wiggle word.

Trump wants this possible surveillance to be investigated along with the rest of the supposed Russia mess — the little that’s left of it to be cleared up.  Meanwhile, that Democratic Party house organ The New York Times is reporting that James Comey himself wants the Justice Department to issue a denial that such a wiretap ever existed — or so the paper’s ubiquitous “sources” say.  Of course the Times itself saw it differently only a couple of months ago. Meanwhile, former DNI James Clapper — who famously told all his fellow citizens a boldface lie about the NSA — has assured the media regarding this particular tap, “I can deny it.” (Yes, you can.)

All this while Barack and Michelle Obama, rather than graciously depart the D. C. scene in the manner of previous presidents, recent ones anyway, have moved into a local estate with their constant companion Valerie Jarrett in some kind of Ménage à Medici as if Barack never had an intention to leave and expects to serve a third term.

My guess is this will all come down to whether our former president knew about this wiretapping — whoever authorized it and wherever it came from — and, if so, when. And also how he reacted to it and what he did from there.  It’s all, in the grand Clintonian tradition, about what the definition of “ordered” is.

Interviewed on “Fox News Sunday,” Sen. Tom Cotton — as close an approximation to “Mr. Smith” as we have in Congress — was asked if the Senate Intelligence panel would address Trump’s wiretapping claim and his answer was a Jimmy Stewart-like “sure.”

Now to why, if I were a Democrat, I’d be afraid.  To explore that you don’t need to be some super-experienced attorney like Andrew McCarthy, although that doesn’t hurt.  Rusty old Occam’s Razor will do — just change the blade and ask some obvious questions somehow overlooked by the MSM in this weekend’s chat shows.  These questions, needless to say, might best be asked under oath by a congressional committee. Later, they might even have to be dealt with in a court of law, as attorney Robert Barnes details well in this article.

Would an attorney general (in this case Loretta Lynch) normally inform the White House of a decision to go to a FISA court for approval of the tapping of a political presidential opponent?  Did Ms. Lynch so inform the White House?  Was there any discussion of this decision between the WH and the DOJ?  Why did the Justice Department decide to go back to the FISA court in October for a second try at approval? Whose idea was that? Did they did have additional information?  What was that?  Was Trump’s name included in the brief the first time but omitted in the second?  Why?  If none of this happened, who made it up and why?  That makes no sense, considering how easy it would be to disprove. Unless, of course, although it’s not supposed to happen, the NSA just regularly taps everything and everybody, including presidential candidates, the president elect, and the president himself.  But why then on Jan 12 of this year, again according to the New York Times, did the Obama administration suddenly broadly extend the powers of the NSA?

I could go on, but you get the point.  The possibilities here are endless. And WikiLeaks already revealed Obama’s extensive use of wiretaps.  It’s a long list.  Nothing particularly new here except this one, if it happened, was aimed at his most important adversary in our democratic republic, threatening the very underpinnings of our country and making Nixon seem like an amateur.  No doubt the Democrats will hide behind national security, but that can only go on for so long.  People in leadership positions like Sen. Cotton are entitled to the facts — and they will get them eventually, perhaps quickly since this is a Trump administration finally, even if so many appointments are being held up.  Also — and this is what the sleaze-artists like Schumer and my own Rep. Adam Schiff know well — Trump has obviously been wiretapped up the you-know-what, probably from numerous sources.  If not, where have all these leaks come from?  Mars?

Former Bush AG Mukasey: Trump ‘Right’ That There Was Surveillance

March 6, 2017

Former Bush AG Mukasey: Trump ‘Right’ That There Was Surveillance, ABC News via YouTube, March 5, 2017

H/t Conservative Tree House for the link to the video and for this insight:

Here’s what’s going on, that almost everyone seems to be missing.

President Trump cannot publicly disclose anything relating to his first hand knowledge of national security issues, specifically intelligence gathering, without opening himself up to accusations of the mishandling of classified information…. which naturally his opposition would use to: #1) drive a media narrative, #2) demand an investigation of him as a leaker of classified intel, and #3) ultimately lead to pearl-clutching calls for impeachment etc. [Emphasis added.]

President Trump cannot publicly discuss anything related to his knowledge of classified information or intelligence.  His opposition (Dems and Media) know this, and therefore use his inability to discuss these matters as a tool to shape their chosen narratives.

The Alinsky accuser can run to the microphones, but the accused has a constitutional gag order.  See how that works?

Absent of the President’s ability to discuss or defend himself, he enters into the media matrix at a disadvantage.  The media can claim anything, and President Trump cannot provide evidence to refute their claims without compromising his position.   The media knows this. The media use this dynamic to their advantage.

The President cannot publicly discuss anything provided to him from the intelligence community.  However, President Trump CAN publicly discuss, or draw attention to, media reports which contain stories about leaks as derived from classified intelligence leaks.

Please read the entire article.

Yes, There Could Be Serious Legal Problems if Obama Admin Involved in Illegal Surveillance

March 5, 2017

Opinion | Yes, There Could Be Serious Legal Problems if Obama Admin Involved in Illegal Surveillance, Law Newz, March 4, 2017

(Speculative, because fewer than all pertinent facts are now available. However, it’s an interesting legal analysis.– DM)

obama-2-6-e1486411130362

President Trump recently tweeted claiming that former President Obama wiretapped him during his campaign. One can only imagine how nuts the media would have gone if the roles had been reversed: President Trump wiretapping either Obama or the Clintons, though his DOJ could have authority to do just that given the expansive leaks of intelligence information by Obama and Clinton supporters the last few months. Heck, he could wiretap the media at this point, legally and legitimately, as the sources of these unlawful leaks, for which Obama himself set precedent. Do liberals understand what Pandora’s Box Obama opened up by Obama using the powers of the NSA, CIA and FBI to spy on his political opponents? Even Nixon never did that.

If the stories are correct, Obama or his officials might even face prosecution. But, we are still early in all of this and there are a lot of rumors flying around so the key is if the reports are accurate. We just don’t know at this time. The stories currently are three-fold: first, that Obama’s team tried to get a warrant from a regular, Article III federal court on Trump, and was told no by someone along the way (maybe the FBI), as the evidence was that weak or non-existent; second, Obama’s team then tried to circumvent the federal judiciary’s independent role by trying to mislabel the issue one of “foreign agents,” and tried to obtain a warrant from the Foreign Intelligence Surveillance Act “courts”, and were again turned down, when the court saw Trump named (an extremely rare act of FISA court refusal of the government, suggesting the evidence was truly non-existent against Trump); and so, third, Obama circumvented both the regular command of the FBI and the regularly appointed federal courts, by placing the entire case as a FISA case (and apparently under Sally Yates at DOJ) as a “foreign” case, and then omitted Trump’s name from a surveillance warrant submitted to the FISA court, which the FISA court unwittingly granted, which Obama then misused to spy on Trump and many connected to Trump. Are these allegations true? We don’t know yet, but if any part of them are than Obama and/or his officials could face serious trouble.

Can a President be charged with a crime? Only once out of office. While in office, impeachment remains the exclusive remedy in order to avoid a single judicial branch trying to overturn an election, such as a grand jury in any part of the country could. Once out of office, a President remains immune from civil liability for his duties while President, under a 1982 decision of the United States Supreme Court. However, as the Nixon pardon attests, nothing forecloses a criminal prosecution of the President after his presidency is complete for crimes against the country. Obama, the Constitutional lawyer, should know that.

What crimes could have been committed? Ironically, for Democrats falsely accusing Attorney General Sessions, perjury and conspiracy to commit perjury, as well as intentional violations of FISA. Rather shockingly, no law currently forbids misusing the power of the presidency to spy on one’s adversaries. What the law does forbid is lying to any judicial officer to obtain any means of surveillance. What the law does forbid, under criminal penalty, is the misuse of FISA. Both derive from the protections of the Fourth Amendment itself. Under section 1809, FISA makes it a crime for anyone to either “engage in” electronic surveillance under “color of law” under FISA without following the law’s restrictions, or “disclose” or “use” information gathered from it in contravention of the statute’s sharp constrictions.

FISA, 50 USC 1801, et seq., is a very limited method of obtaining surveillance authority. The reason for its strict limits is that FISA evades the regular federal court process, by not allowing regularly, Constitutionally appointed federal judges and their magistrates to authorize surveillance the Fourth Amendment would otherwise forbid. Instead, the Chief Justice handpicks the FISA court members, who have shown an exceptional deference to the executive branch. This is because FISA court members trust the government is only bringing them surveillance about pending terror attacks or “grave hostile” war-like attacks, as the FISA statute limits itself to. Thus, a FISA application can only be used in very limited circumstances.

One important reminder about electronic surveillance. Occasionally, a law enforcement officer will hear or see or record information not allowed by the warrant, but incidental or accidental to otherwise lawful surveillance. Their job is to immediately stop listening, stop recording, and to delete such information. This is what you occasionally see in films where the agent in the van hears the conversation turn away from something criminal to a personal discussion, and the agent then turns off the listening device and stops the recording. Such films simply recognize long-standing legal practice.

FISA can only be used for “foreign intelligence information.” Now that sounds broad, but is in fact very limited under the law. The only “foreign intelligence information” allowed as a basis for surveillance is information necessary to protect the United States against actual or potential “grave” “hostile” attack, war-like sabotage or international terror. Second, it can only be used to eavesdrop on conversations where the parties to the conversation are a foreign power or an agent of a foreign power. An agent of a foreign power cannot be a United States person unless they are knowingly involved in criminal espionage. No warrant is allowed on that person unless a FISA court finds probable cause the United States person is knowingly engaged in criminal espionage. Even then, if it involves a United States person, special steps must be taken to “minimize the acquisition and retention, and prohibit the dissemination, of non publicly available information concerning un-consenting United States persons.”

This includes procedures that require they never identify the person, or the conversation, being surveilled, to the public where that information is not evidence of a particular crime. Third, the kind of information sought concerns solely information about a pending or actual attack on the country. That is why the law limits itself to sabotage incidents involving war, not any form or kind of “sabotage,” explicitly limiting itself to those acts identified in section 105 of Title 18 of the United States Code.

This bring us to Watergate-on-Steroids, or #ObamaGate. Here are the problematic aspects of the Obama surveillance on Trump’s team, and on Trump himself. First, it is not apparent FISA could ever be invoked. Second, it is possible Obama’s team may have perjured themselves before the FISA court by withholding material information essential to the FISA court’s willingness to permit the government surveillance. Third, it could be that Obama’s team illegally disseminated and disclosed FISA information in direct violation of the statute precisely prohibiting such dissemination and disclosure. FISA prohibits, under criminal penalty, Obama’s team from doing any of the three.

At the outset, the NSA should have never been involved in a domestic US election. Investigating the election, or any hacking of the DNC or the phishing of Podesta’s emails, would not be a FISA matter. It does not fit the definition of war sabotage or a “grave” “hostile” war-like attack on the United States, as constrictively covered by FISA. It is your run-of-the-mill hacking case covered by existing United States laws that require use of the regular departments of the FBI, Department of Justice, and Constitutionally Senate-appointed federal district court judges, and their appointed magistrates, not secretive, deferential FISA courts.

Out of 35,000+ requests for surveillance, the FISA court has only ever rejected a whopping 12. Apparently, according to published reports, you can add one more to that — even the FISA court first rejected Obama’s request to spy on Trump’s team under the guise of an investigation into foreign agents of a pending war attack, intelligence agents apparently returned to the court, where, it is my assumption, that they did not disclose or divulge all material facts to the court when seeking the surveillance the second time around, some of which they would later wrongfully disseminate and distribute to the public. By itself, misuse of FISA procedures to obtain surveillance is itself, a crime.

This raises the second problem: Obama’s team submission of an affidavit to to the FISA court. An application for a warrant of any kind requires an affidavit, and that affidavit may not omit material factors. A fact is “material” if it could have the possible impact of impacting the judicial officer deciding whether to authorize the warrant. Such affidavits are the most carefully drawn up, reviewed, and approved affidavits of law enforcement in our system precisely because they must be fully-disclosing, forthcoming, and include any information a judge must know to decide whether to allow our government to spy on its own. My assumption would be that intelligence officials were trying to investigate hacking of DNC which is not even a FISA covered crime, so therefore serious questions arise about what Obama administration attorneys said to the FISA court to even consider the application. If the claim was “financial ties” to Russia, then Obama knew he had no basis to use FISA at all.

Since Trump was the obvious target, the alleged failure to disclose his name in the second application could be a serious and severe violation of the obligation to disclose all material facts. Lastly, given the later behavior, it is evident any promise in the affidavit to protect the surveilled information from ever being sourced or disseminated was a false promise, intended to induce the illicit surveillance. This is criminalized both by federal perjury statutes, conspiracy statutes, and the FISA criminal laws themselves.

That raises the third problem: it seems the FISA-compelled protocols for precluding the dissemination of the information were violated, and that Obama’s team issued orders to achieve precisely what the law forbids, if published reports are true about the administration sharing the surveilled information far-and-wide to promote unlawful leaks to the press. This, too, would be its own crime, as it brings back the ghost of Hillary’s emails — by definition, FISA information is strictly confidential or it’s information that never should have been gathered. FISA strictly segregates its surveilled information into two categories: highly confidential information of the most serious of crimes involving foreign acts of war; or, if not that, then information that should never have been gathered, should be immediately deleted, and never sourced nor disseminated. It cannot be both.

Recognizing this information did not fit FISA meant having to delete it and destroy it. According to published reports, Obama’s team did the opposite: order it preserved, ordered the NSA to search it, keep it, and share it; and then Obama’s Attorney General issued an order to allow broader sharing of information and, according to the New York Times, Obama aides acted to label the Trump information at a lower level of classification for massive-level sharing of the information. The problem for Obama is simple — if it could fit a lower level of classification, then it had to be deleted and destroyed, not disseminated and distributed, under crystal clear FISA law. Obama’s team’s admission it could be classified lower, yet taking actions to insure its broadest distribution, could even put Obama smack-middle of the biggest unlawful surveillance and political-opponent-smear campaign since Nixon. Except even Nixon didn’t use the FBI and NSA for his dirty tricks.

Watergate would have never happened if Nixon felt like he could just ask the FBI or NSA to tape the calls. This is Hoover-esque abuses of the kind Bob Woodward pal, former FBI Assistant Director Mark Felt (otherwise known as Deep Throat), routinely engaged in at the FBI until convicted and removed from office. (You didn’t know that Deep Throat was really a corrupt part of Deep State, did you? Guess who ran the famous COINTELPRO? That’s right — Deep Throat. How would the public have reacted if they knew the media had been in bed with the deep state all the way back then? Maybe that was the reason Woodward, Bernstein and Bradley kept Deep Throat’s identity secret all those years?)

Democrats may regret Sessions’ recusal, as his replacement is a mini-Sessions: a long-respected, a-political, highly ethical prosecutor, Dana Boente, whose reputation is well-warranted from his service at the Tax Division, and who won’t be limited by any perceived ties to Trump, given his prior appointment by Obama. Obama himself appeared scared of Boente, as he removed Boente from the successor-to-Sessions position during the lame-duck part of Obama’s presidency, but Trump restored Boente to that role earlier this month. Democrats may get the investigation they wanted, but it may be their own that end up named in the indictment.

Robert Barnes is a California-based trial attorney whose practice focuses on tax defense, civil rights and First Amendment law. You can follow him at @Barnes_Law

Lt. Col. Shaffer on wiretapping: This is Soviet behavior

March 4, 2017

Lt. Col. Shaffer on wiretapping: This is Soviet behavior, Fox News via YouTube, March 4, 2017

(Please see also, Trump Goes Nuclear with Claim Obama Wiretapped him During Election [Updated] and my parenthetical comment there. — DM)

 

Trump Goes Nuclear with Claim Obama Wiretapped him During Election [Updated]

March 4, 2017

Trump Goes Nuclear with Claim Obama Wiretapped him During Election [Updated], Power LineJohn Hinderaker, March 4, 2017

(Please see also, Mark Levin to Congress: Investigate Obama’s ‘Silent Coup’ vs. Trump for this confirmation of the wiretapping:

October: FISA request. The Obama administration submits a new, narrow request to the FISA court, now focused on a computer server in Trump Tower suspected of links to Russian banks. No evidence is found — but the wiretaps continue, ostensibly for national security reasons, Andrew McCarthy at National Review later notes. The Obama administration is now monitoring an opposing presidential campaign using the high-tech surveillance powers of the federal intelligence services.

— DM)

Someone in the intelligence/law enforcement bureaucracy had applied for a FISA warrant to tap the Trump people in June, It was turned down. Renewed and granted in October, I think. The details are out there. That’s what he’s talking about.

**********************

Early this morning, President Trump unleashed a barrage of tweets accusing then-President Barack Obama of wiretapping his office in Trump Tower during the presidential election:

Terrible! Just found out that Obama had my “wires tapped” in Trump Tower just before the victory. Nothing found. This is McCarthyism!

Is it legal for a sitting President to be “wire tapping” a race for president prior to an election? Turned down by court earlier. A NEW LOW!

I’d bet a good lawyer could make a great case out of the fact that President Obama was tapping my phones in October, just prior to Election!

How low has President Obama gone to tapp my phones during the very sacred election process. This is Nixon/Watergate. Bad (or sick) guy!

This is the most explosive political allegation in many years, far more explosive than Watergate. Is it true? I assume it has some basis in fact, e.g., Trump’s security people may have told him that they detected a tap on one or more of his phone lines. I have no idea how that works, or why it would only be detected now, or how the presence of a wire tap could be connected to the Obama administration. But it seems unlikely that Trump would make such a dynamite allegation without some kind of support.

I also wonder what Trump means by “turned down by court earlier.” It sounds like the Obama administration applied for a tap on Trump’s phones at some point, and was denied. Is it possible that Obama later succeeded in getting a wire tap order from a partisan judge, and that is what has now come to light? That is hard to imagine, but there are some very bad federal judges. The comment “nothing found” may support this interpretation.

At this point, it is all quite mysterious. But the claim is nuclear, and I can’t believe it is wholly without basis. Stay tuned!

UPDATE: Scott emails:

Someone in the intelligence/law enforcement bureaucracy had a applied for a FISA warrant to tap the Trump people in June, It was turned down. Renewed and granted in October, I think. The details are out there. That’s what he’s talking about.

This is astonishing to me, as I have never heard a word about this story. If the Obama administration abused the FISA process to wiretap a political opponent, it is a scandal of the first order–the worst political scandal of my lifetime, easily. And the press has known about it and covered it up? Unbelievable.