While the Secretive FISA Court Rebuked the FBI – The Court has its own Problems

by | Dec 19, 2019 |

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The secret federal court that approves orders for conducting surveillance on suspected foreign terrorists or spies issued a strong and highly unusual public rebuke to the Federal Bureau of Investigation (FBI) on Tuesday, ordering the agency to say how it intends to correct the errors revealed last week by a Justice Department Inspector General’s Report on the FBI’s investigation of Donald Trump’s 2016 campaign.
So today, the chief judge of a secretive surveillance court said that the FBI must fix problems identified in a harshly critical Department of Justice (DOJ) Inspector General Report by January 10, 2020. Further, today’s highly secretive Foreign Intelligence Surveillance Act (FISA) Court published an order whipping former FBI Director James Comey for the fraud he perpetuated on the American people. 
Similarly, the FISA Court order responded to reports that personnel of the FBI provided false information to the National Security Division (NSD) of the DOJ, and withheld material information from NSD which was detrimental to the FBI’s case, in connection with four applications to the FISA Court for authority to conduct electronic surveillance of a U. S. citizen named Carter W. Page. When FBI personnel mislead NSD in the ways described above, they equally mislead the FISA Court.
Finally, the FISA Court order reveled and validated that former Director Comey lied to the American people by falsely claiming the FBI strictly followed the law when obtaining a FISA warrant on Carter Page. In addition, although not applicable here, the FISA Court order also showed that the ‘media’ committed fraud on the public for years on behalf of the Obama administration by claiming the FISA process it was following was valid and upheld, but that’s another issue in and of itself and another story all together.
As a result, the FISA Court expects the government to provide complete and accurate information in every filing request and application made with the Court. In that vein, the Court stated that without it, the FISA Court cannot properly ensure that the government conducts electronic surveillance for foreign intelligence purposes except and only when there is a sufficient factual basis. This is where I’m having a problem, though.
Let me caveat this: I know the FISA process. I’ve had to coordinate on such requests to the NSA, when I served in various capacities within the Intelligence Community. At the same time, having reviewed the readouts derived from the intelligence information that was collected on the targeted foreign individuals.
In its review and findings resulting from the DOJ IG Report, the FISA Court indicated that:

  1. The FBI’s handling of the Carter Page applications, as portrayed in the DOJ IG Report, was antithetical to the heightened duty of candor described above.
  2. 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.
  3. Finally, the FISA Court has ordered the FBI to file a report under oath in how it will correct the shortcomings in its response to the FISA Court.

Judge Rosemary Collyer


With that, Judge Rosemary Collyer, the ranking judicial appointee on the FISA Court said in the public order on Tuesday that the FBI had submitted “unsupported” information in its FISA applications to eavesdrop on former Trump campaign aide Carter Page, along with that of the Trump campaign. I’m really having some serious concerns here. I’ll go on.
Likewise, she directed the FBI to respond with how it will ensure the accuracy of future FISA applications to electronically monitor the communications of individuals it suspects of being terrorists or agents of a foreign power. The FBI responded saying it’s committed to working with the DOJ and the FISA Court, “to ensure the accuracy and completeness of the FISA process.” Okay got that, but…
Recall, Justice Department Inspector General Michael Horowitz said the FBI made serious and repeated mistakes in seeking under FISA warrants, to conduct surveillance of Carter Page, a former Trump campaign adviser. Yes, of course, particularly when using the bullshit Steele Dossier as justification for a warrant. WTF!
The FBI’s submission to the court made assertions that were “inaccurate, incomplete, or unsupported by appropriate documentation,” in the wake of findings from DOJ IG Michael E. Horowitz IG Report. With that, in the rare public order on Tuesday Rosemary M. Collyer the ranking judge of the FISA Court strongly criticized the FBI over its surveillance-application process, giving the bureau again until January 10th to come up with solutions.
Judge Collyer stated, “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,” she 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.”
Horowitz said he did not find significant evidence that FBI agents were involved in a political conspiracy to undermine Trump’s candidacy in 2016. However, the report did find numerous ‘errors and inaccuracies’ used by FBI agents to obtain permission to monitor Page’s phone calls and emails.
With that, here are the real concerns that I am focusing on that no one is taking issue with. I’ll address these in two (2) points, with the latter being the greatest and most egregiously overlooked. 
First Point, while Judge Collyer’s order did not specify exactly what reforms the FBI needed to implement to its policies for obtaining permission to conduct electronic surveillance of people under the FISA law, the order did say that the FISA Court will weigh-in on whether the reforms are deemed sufficient. That’s a hint…but, permit me to continue.
Also in her response, she noted, “The [FISA Court] expects the federal government to provide complete and accurate information in every filing with the court,” Collyer wrote. She went on to say that, “Without it, the [FISA Court] cannot properly ensure that the government conducts electronic surveillance for foreign intelligence purposes only when there is a sufficient factual basis.” Hmmm…another hint, but I’ll go on.
Those not familiar, should understand that the FISA Court deals with some of the most sensitive matters of national security, those being; terrorism, terrorist threats, and espionage against the United States by foreign nations and entities. For years, its work, for the most part, could and cannot be examined by the American public, by order of Congress, and or by the president. Its work has been mostly secret, its structure largely one-sided. So how is this to be handled? Seriously, it comes down to integrity, a strict processes, honesty and trust of those involved with submitting the FISA request/applications, and the character of the judges appointed to the FISA Court. Another, hint…and while perhaps this effort is too secret for oversight? Again, I will stress, than by all means – there’s a need more than ever for utmost and overwhelming integrity, honesty, judgement, and righteousness must reign and be paramount, by those involved throughout the process.
Tuesday’s order from the court came amid a Republican-led push to reform FISA, with last week’s introduction of the FISA Improvements Act. That being a bid to “stop these abuses” and effectively amend FISA by adding requirements on the FBI, the DOJ and on the FISA Court, which would also give Congress “critical new insight to perform oversight of the FISA powers.
It is in response to the deceptive actions of a few high-ranking officials within the Obama FBI and the DOJ  who obviously have eroded public trust in our federal institutions – removing the internal guardrails, deceiving the FISA court, and irreparably damaging the reputation of an innocent American” — hence, again a reference to Carter Page.
It also would ensure that the DOJ disclose “any usage of unverified information in the application,” and include a provision in which any FISA extensions are heard or denied by the same judge which “ensures that the government is not able to obfuscate details of an expiring order’s newly gathered evidence to support renewal.”  As would be expected, Judge Collyer’s order was met with praise by some Republican lawmakers, including Senate Judiciary Committee Chairman Lindsey Graham (R-SC).
Second Point — as I noted, there is a “greater” problem here. And this is it because it is so egregious, it perplexed me to no end that not a single news organization, or not a single one of the long list of subject matter and national security journalistic experts even mentioned it, with the exception of Dinesh D’ Souza, who came close. What am I talking about – the FISA Court itself and its judicial members led by Judge Collyer.
I’m really concerned with Judge Collyer because she is essentially ‘covering her ass.’ I am angry, very angry!

Why didn’t ‘she’ call out James Comey, as well as former Obama Attorney General Loretta Lynch, CIA Director John Brennan, Director of National Intelligence James Clapper, or other ranking officials when the FISA applications were submitted to the Court requesting the FISA warrants, albeit, as weak as they were. 

The culmination of this is the fact that what I’m calling out remains unaddressed and for all intents and purposes, ignored by all. Except for Representative Devin Nunes (R-CA), the ranking member of the House Intelligence Committee, two-years ago addressed to the Court the likelihood of fraudulent requests to the FISA Court of the Obama administration. Now at this point, why is no one calling out the ranking judge, Rosemary Collyer. Why is anyone allowing her to shift blame on the FBI in her now claiming that the applications were less than applicable standard-wise. Yes, and will certainly agree, the FBI is guilty of submitting substandard and even fraudulent applications to the FISA Court. But, Judge Collyer, approved them and issued the warrants. The judge and her FISA Court justices should have realized that what was submitted by the FBI was fraudulent and not approved the FISA requests in the first place. In fact, why at any time during 2016 did Judge Collyer not throw down the bullshit flag and say, we need more evidence, more information, more justification — ‘these [applications] are bullshit!’  I’m really livid over that…what were they doing? What were they thinking? 
Further, now in her report she is calling on the FBI and DOJ to fix the problem because all the FISA applications didn’t meet the standards and requirements. Granted, those missteps must be fixed. However, her court was also extremely lax and appears to have rolled over for and on behalf of Obama’s senior Intelligence Community officials. Chief Justice of Supreme Court John Roberts appoints the FISA judges and administers the FISA Court and supposed to be providing oversight. Causing one to ask — where was proper oversight?
Briefly, understand that, the FISA court judges are appointed solely by the Chief Justice of the United States without confirmation or oversight by the U.S. Congress. Since May 2014, four of the five judges appointed by Chief Justice Roberts to the FISA Court were appointed to their prior federal court positions by either Presidents Bill Clinton and or Barack Obama. Perhaps, Judge Collyer’s 2013 prior federal bench position and subsequent appointment to the FISA Court, was by President Obama. I would ask, has that something to do with it — but I will not speculate. Judge Collyer’s term expires March 7, 2020. Again, certainly, it is arbitrary and capricious for FISA Court presiding Judge Collyer to say today she has concerns about fraud upon the court after being notified two years ago about the issue.”
Going forward, starting today, if I was a member of the Intelligence Committee of the current Congress — i.e.; Representative Devin Nunes, and his Republican colleagues on the Committee and in Congress, I would again be asking Judge Collyer and the FISA Court why they granted warrants for substandard requests. Judge Collyer needs to be questioned and she needs to address her shortcoming in this matter publically. She could have stopped this based on the power and authority and position as the senior and ranking FISA Court Judge. Further, because of both the sensitivity and the severity of this matter, I believe she could have addressed this with the Attorney General and the Obama administration leadership, certainly at the time.
Finally, because of the precedent of this — in which the lives of private American citizens were and are at stake, along with their respective reputations — it must be addressed now. Particularly that of a duly elected sitting President, Donald Trump. Not to mention honorable men, namely General Mike Flynn who was directly and deliberately targeted for the sole purpose of taking him down and destroying him.
Yes, the Obama FBI and DOJ deserves blame, and I EXPECT SWIFT and HARSH justice. But blame must also be laid on the FISA Court judges who granted the warrants to electronically eavesdrop on Americans. The madness must end now!

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Jim Waurishuk is a retired USAF Colonel, serving nearly 30-years as a career senior intelligence and political-military affairs officer and special mission intelligence officer with expertise in strategic intelligence, international strategic studies and policy, and asymmetric warfare. He served as a special mission intelligence officer assigned to multiple Joint Special Operations units and with the CIA’s Asymmetric Warfare Task Force and international and foreign advisory positions. He served as Deputy Director for Intelligence for U.S. Central Command (USCENTCOM) during the peak years of the wars in Afghanistan, Iraq, and the Global War on Terrorism.

Waurishuk is a former White House National Security Council staffer and a former Distinguished Senior Fellow with the Atlantic Council, Washington, D.C. He served as a senior advisor to the Commander U.S. Special Operations Command (USSOCOM) and served as Vice President of the Special Ops-OPSEC.

Currently, he is the Chairman of the Hillsborough County (FL) Republican Executive Committee and Party and serves on the Executive Board of the Republican Party of Florida.

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Cathi Chamberlain
2 years ago

Yes I’ve been wondering the same thing about why the FISA Court judge remained silent for so long. Doesn’t make sense unless she was complicit. She HAD to know, right? Thanks for clarifying her background under Obama and Robert’s involvement. I want to hear from HIM!

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