BULLSHIT ALERT!

Posted on August 31, 2018 by sundance

Disturbing – FISA Court States No Hearings Conducted Before Issuing Title-1 Warrant Allowing Surveillance Over Trump Campaign…

This is troubling on many levels.  According to a responsive filing from the FISA Court (full pdf below), there wasn’t any hearing on the sketchy FISA application submitted by the DOJ/FBI to conduct FISA Title-1 surveillance on Carter Page.

What a load of crap. The writer breathlessly says that there was no hearing to review the FISA search warrant application. I haven’t written a FISA warrant, but I have drafted or reviewed over a thousand search warrants. These affidavits were destined for both state and federal jurisdictions. Never, not once, have I heard of let alone participated in a hearing prior to the issuance of a search warrant.

I will admit there were variations on the theme when applying for a search warrant. In Bexar County, (San Antonio), the District Attorney refused to assist in the drafting or prior review of search warrant applications. Go fifteen miles up the road to Comal County, (New Braunfels) and the District Attorney insisted on prior review.

The United States Attorney required prior review and approval. The level of involvement of the AUSA in the process varied. It depended on the relationship between the affiant (officer) and the AUSA. If the AUSA was familiar with the officer’s work product and had confidence in it, then the review was to check the form and composition. Without a track record, some AUSA’s would redraft the application. Either way, a Federal Magistrate Judge would not accept an application that wasn’t already endorsed by an AUSA.

A general rule for search warrant applications is that all of the information supporting the application must be contained within the “four corners” of the application. Any discussion between the judge and the affiant regarding the application was usually to put something into context for the judge. This is essentially a pass/fail exercise. The probable cause either exists or it doesn’t.

A “hearing” suggests to me that both sides are represented and allowed to present arguments for and against the issuance of a search warrant. That may work for civil process such as a restraining  or protective order or an injunction, but not a search warrant. The author leaves the reader with the impression that a process that doesn’t exist, wasn’t followed. He would be right.

If you have followed my previous postings on FISA and Title III warrants, you will have some idea of the level of review to which such an application is subjected. A  FISA application can be found on-line. Go to the last page and look at the signature blocks. The people that signed off o the warrant application are certifying that they reviewed the application and approve it: https://vault.fbi.gov/d1-release/d1-release/view. 

The problem is not the level of scrutiny. The problem lies in the lack of ethics possessed by the people that did the review.

As a young police officer, in Texas, my first contact with the judicial system was in the person of the local Justice of the Peace (JP). JP is an elected position and the office holder is not required to be an attorney.

In the police station was a rack that held assorted forms likely to be used by officers.  It contained criminal complaints, arrest warrants, search warrants and applications, bond forms and magistrate’s warnings. These were forms the judge might use if he was called out late at night.

One of the JP’s pointed out to me that if I ever needed an arrest or search warrant and was unable to find a judge, he had me covered. At the bottom of the stack of forms were blank, except for his signature, criminal complaints, arrest warrants and search warrants. He told me if you need one just fill it out and get it to me later.

Once I was assigned to narcotics, I was applying for search warrants on a weekly basis. The judges that I went to had varying reputations. Some judges would sign anything put before them and rarely read the affidavit. Other judges demanded not only probable cause but grammatical perfection. Most judges fell somewhere in between. I avoided the rubber stamp judges. 

I reasoned that if I was going to risk the lives of officers and suspects to execute a search warrant, then I wanted a warrant that could withstand scrutiny at trial. I had confidence in my ability to deliver a valid application, but an independent  review by an impartial judge was a help not a hindrance. In fifteen years of drafting an presenting search warrants at the state and federal level, I had three rejected. Two of the warrants that were rejected were rejected by the same Federal Magistrate. I  had the aid of an Assistant United States Attorney (AUSA) in drafting both. In each instance, we were uncertain and couldn’t disagree with the judge when he rejected our efforts.

Prior to reading the FISA application, I was willing to give the benefit of the doubt to the government. After reading the FISA application, I think that the application was never intended to withstand legal scrutiny. The whole charade was nothing more than a “trial by press” exercise.