WATCH: Should FISA court be abolished amid FBI abuses?

The Justice Department recently announced it uncovered more problems with the integrity of FBI wiretaps on American citizens. That after serious abuses were exposed in the FBI’s wiretapping of Carter Page, a former Trump campaign volunteer. Amid the scandal, some Democrats and Republicans are pressing to eliminate the secretive court put in place decades ago to fix previous abuses by U.S. intel officials. Today, George Croner is defending the Foreign Intelligence Surveillance Act or FISA court. He’s a FISA expert at the Foreign Policy Research Institute and was a lawyer at the National Security Agency.

Croner: FISA was an outgrowth of intelligence abuses unearthed during congressional hearings in the 1970s. In particular, a couple of programs that were that operated without any judicial supervision or involvement whatsoever.

Sharyl: Give me one line on each program and the name of it because I think that’s interesting.

George Croner: The two principal programs involving the National Security were one called Project Minaret, which was called the Watch list Program, in which the communications of individuals identified for collection had their communications collected by NSA without a warrant, solely at executive direction, and included prominent Americans at the time, like Tom Wicker, Arthur Burns, Jane Fonda, and I could go on and on. That was Minaret, the Watch List. One of the ways you might’ve ended up on the Watch List was another program even more pervasive, which was Operation Shamrock, which was the program whereby NSA from the 40s on received copies of every telegram that entered, exited or transited the United States, through the three principle, virtually sole telegram companies operating at the time, Western Union, RCA, IT&T. But again, the entire program was implemented without any legislative or judicial oversight and for years collected every telegram.

Sharyl: There are some members of Congress who say, these are regular judges in the rest of their life that serve on the FISA court. We can just go to federal judges and have them do this in a very secretive and confidential way rather than having them gather as a special court. What’s wrong with that idea?

Croner: If you spread it to every district judge, they may get one in a lifetime. You’re not going to get that level of expertise. If you spread this to the hundreds of federal judges out there, they not going to have that institutional competence.

Sharyl: How do you think it slipped past them, if you consider that it did slip past them, that a wiretap application was brought to them one time, two times, three times, four times on the same man, Carter Page, without additional evidence, in fact with flawed evidence, but without additional evidence showing he was acting as a Russian spy. Should that have been captured by the system?

Croner: If the judges aren’t told the information they need to make the decision because the FBI isn’t telling them the information, I don’t know how that’s an institutional problem at the FISA court.

Look, I can assure you of this. I suspect that every FBI FISA application that now comes before the FISA court is being microscopically examined. And I suspect you’ll see a lot more of situations where the court calls on an Amicus counsel that is available to them to look at FBI applications.

Sharyl: And an Amicus counsel in simple terms is what?

Croner: The Amicus Curiae council are designed to come in and as I say, introduce the concept of adversariality to the process by poking at it, looking at it and so on. And they’re supposed to be people who are skilled and have fine reputations in the area of privacy, civil liberties and technical issues.

Sharyl: What if this is found to be a systemic problem?

Croner: Then I think you have obviously more serious and more detailed corrective measures, remedial measures that have to be instituted. But I think you have to recognize the focus of where those remedial measures need to be directed. And that would be the FBI and the Department of Justice. If you don’t have the leadership in place at the Justice Department to institute the reforms that are necessary to ensure that a document that reaches the FISA court can be accepted by the court as trustworthy, then that’s to me, that’s where the remedial action needs to be directed.

Croner: Look, there’s an underlying group of folks who have hated FISA from day one. And politically, they come from both directions. You have people like Ron Wyden who is a civil liberties advocate and he just doesn’t like FISA and he certainly doesn’t like section 702. And then you have people on this side, Mark Meadows, Rand Paul. There is absolutely nothing in the world that they share with Ron Wyden except their mutual dislike of FISA. And so you see that sort of rather bizarre political coalition develop. And to me, it’s an opportunistic effort to go after a statute that I just don’t think anyone has shown that FISA is fundamentally flawed.

Several parts of the government’s surveillance authority have lapsed with members of Congress in disagreement over whether to make major reforms, minor ones, or leave things as they are.

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3 thoughts on “WATCH: Should FISA court be abolished amid FBI abuses?”

  1. Mr. Croner the FBI knew they could get away with this because they have most certainly done it before. You say, ‘If the judges aren’t told the information they need to make the decision…’

    Well can’t the judges ask questions? Like, “who is Carter Page?” “Oh, he’s working with the Trump campaign. You want to spy on a member of a campaign and unmask everyone he talks to? Are you kidding me? Where’s the evidence to justify this? If I find out that any lawyers have failed to provided non-corroborating information on this request I will see that you are disbarred as well as any lawyers who sign off on this information.”

    Apparently and sadly, the judges have to take a much more adversarial role with the ‘trusted’ FBI than ever before. Unless I see multiple heads roll I will never trust them again.

    I think the judges were asleep on these applications and they share much of the blame. Unless spying on campaigns is also routine. Of course we don’t have the transcripts of the proceedings but they would be very interesting to see.

  2. Strongly agree the judges were asleep. However, it would seem they had no reaction after it was out that thinks.were not as suppose to be. If this is true then they were just, lazy, inept or worse.

    What do these judges do. Seems it does not take long to listen to the cases they hear.. So do they golf a lot?

  3. The sad truth is, our “Judges” and “courts” give the words of anyone wearing a Badge very high trust. Yes, when any Law Enforcement Officer speaks in Court, the Judge views them as an “Officer of the Court,” meaning, basically, their words are viewed as already corroborated truth. Very little burden of proof is required for what a person with a Badge says in Court, unless there’s a defence Attorney there to force the Judge to demand it. This speaks to the deeply concerning nature of these “secret” Courts and their Hearings that only the accusers are allowed to know about. Any time ANY Court convenes to determine whether your rights are to be violated legally, and you are not provided great latitude in both knowledge of the matter and defense of your rights, the Judge has broken their sworn Oath and set aside the Constitution. This has been going on for decades though, and not just in the FISA Courts. Now that they have these Courts, the only thing that will check these abuses, the only thing that will keep them from growing ever greater, is Judges who are activists for the Constitution, rather than rubber stampers for Law Enforcement. In far too many ways, our Courts have become a limb of Law Enforcement, rather than a separate ruling entity.

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