With all the back and forth rhetoric regarding the FISA warrants, FBI, and dubious intelligence sources used to justify further investigation into Trump’s “Russia Connection,” I’m afraid the real importance of the controversy is being missed.
Government is supposed to be above religion, yet thousands of times daily American courts rely wholly on “Faith” to accomplish their tasks. Witnesses are asked to swear or affirm that; “they will tell the truth, the whole truth and nothing but the truth. They are asked to swear to the truth and veracity of forms, documents, and records brought before the court. Ours is an adversary form of justice, that means that every fact brought before the court is subject to challenge. Either side must be able to prove that their documents, records, or testimony are worthy of belief. Much of the information is challenged, that is why we have trials. Even so, a lot of information goes without a direct challenge. It is then up to the judge to determine what is and isn’t legally admissible. (It is up to the jury to decide how much weight (or credibility) to a fact.)
In building a case, the investigator and prosecutor must take their witnesses as they find them. Chances are in a criminal case, there will never be an ideal witness. When I worked dope, I frequently pointed out that Mother Teresa wouldn’t do me any good at all because she couldn’t buy dope. House-intel-votes-to-release-controversial-surveillance-memo-to-public.
In fifteen years I have drafted or reviewed a thousand search warrant applications and probably interviewed three times as many potential informants. They go hand in hand. The standard that must be reached to obtain a search warrant is probable cause. Here is what the Supreme Court has to say: In Illinois v. Gates, the Court favored a flexible approach, viewing probable cause as a “practical, non-technical” standard that calls upon the “factual and practical considerations of everyday life on which reasonable and prudent men […] act”.1
Notice there is no scale and no percentage. The United States relies on “reasonable and prudent men” when the light goes on in their head, Bingo! Probable Cause. The problem is the reasonable and prudent men the court envisions don’t get tired or frustrated, they don’t miss little league games, they don’t get wet or cold or too hot. When the fight starts, reasonable and prudent men hover above the fray, they don’t get hit or hurt. Reasonable and prudent men don’t blink or misinterpret what they see. They can repeat a conversation word for word. They have never been at a loss for words and can make a police report read like poetry.
The other half of the equation is the “credible and reliable persons”(informants, snitches, CI’s, cooperating defendants, and occasional good citizens). The first thing an investigator has to do with a first-time informant is to determine why me? What does the informant want? After the prospective informant makes his/her needs clear the second thing to determine is why did they lie about what they wanted? Next on the list is to find out what the informant wants. Determining the motivation of a particular informant helps to filter and assess future information coming from that individual.
As an investigator, I don’t have to identify or name my sources to the Magistrate Judge. However, I have to give the Judge enough information to satisfy the judge that such a person exists. Why his/her information is believable and what I did to verify it. In the context of a dope warrant, I used to tell new agents, list nine things that informant told you and show me how you verified eight of them. If the only thing unverified was the presence of dope at the location, then there was probable cause.
So what is the FBI trying to protect? Maybe they have a talking dog. If I had a talking dog I would want to classify any conversation that we had. I would keep those conversations secret, not to protect the content of the discussions, but if word got out that my dog could talk, nobody would say anything when he was around. This is called protecting means and methods. A lot of information that comes into an investigation is rather mundane, but the route it takes to get there…
So the government has the ability to shield the source and means and methods of gathering information in a normal prosecution. Then the government went out and created a “secret court” so that it could further restrict the flow of information. Sounds like a prosecutor’s dream. There is trouble in paradise and it got stirred up by NYPD. In May 2016, the New York Times published a story about the FISA Court, they failed to make their point but did supply an explanation for what and why things are happening the way they are at the FBI. I reported on it here http://poracponders.com/cop-stories/fisc-non-story/. If I can find this shit why can’t the Slimes?
Back to the real world. As the “case agent” on a dope investigation I would be in charge of the investigation, the report writing and any criminal complaints and search warrants arising out of that investigation, That is not to say I wouldn’t have a whole host of cops, investigators, AUSA’s and Assistant District Attorneys backing me up. But when it came time to sign the complaint or affidavit, it is my name that appears on the paperwork that the Judge sees. It is my voice that tells the Judge, “I swear or affirm that the information contained therein is true and correct to the best of my knowledge and belief.” If it turns out I lied or played fast and loose with the facts, then the perjury charge is mine and mine alone. It doesn’t matter if it is a three man or thirty man operation, I’m responsible my name is on the affidavit.
The Slimes report covers several areas, rubber stamping of affidavits (bull), cumbersome process, excessive review, too many levels of review and the inability to respond quickly.
With the advent of FISA, the FBI had the opportunity to create a whole new bureaucracy. They could be on the frontlines on the war on terror; never hear a shot fired in anger, never wear the same pair of undershorts three days in a row, or miss a cocktail hour. They could stand around and drop hints and then reply, “I can’t talk about it, National Security, you know.” The military was going to war and the FBI was going to Sparks Steakhouse.
So how does a FISA warrant differ? The guy with the most information and knowledge has the least input into the final product. The case agent documents his/her investigation and the rationale for asking for a Title III (Wiretap) and submits it to his Group Supervisor (GS). From there it goes to the legal advisor and possible a second FISA legal advisor. It probably also takes a side trip to the Joint Terrorism Task Force (JTTF) if it wasn’t originated within that squad. I don’t know but I’d be willing to bet that there is a Shire and Sunni desk, an Al Qaida, and whoever else is on the hit parade desk. Each gets to evaluate the affidavit. After the specialist’s paw over it, which may include other initialed agencies, then it starts climbing associate director, assistant director New York FBI for operations and logistics, Deputy Direct New York FBI. The affidavit is making a similar journey, Assistant United States Attorney, First Chair JTTF New York, Regional JTTF, Criminal Division Chief United States Attorney by District, Assistant Division Chief Department of Justice, Deputy Director Criminal Divison, Assistant Attorney General United States Department of Justice and Attorney General. I might have missed one or two, mislabeled a couple but I’m willing to bet I’m in the ballpark. All of these people would have the ability to approve deny or change an affidavit. All of them are capable of determining if the affidavit meets the requirements of the law.
Of all these people, there is only one living in the valley and susceptible to shit rolling downhill. There is the only one that knows more about this particular investigation and that’s the Special Agent/Affiant on the affidavit. He is also least able to make a change once the affidavit begins its climb to the nether regions. The affiant is also the only participant who swore an oath. These cool calculating bureaucrats would argue that the affiant is the only person criminally responsible.
Let’s challenge that assertion. In the file folder that the affiant has but the judge never sees is a document that tracks the movement of the search warrant affidavit on its journey through the bureaucracy. It will show who reviewed it and when it may have a scribbled comment or have a full memo attached. It will demonstrate who intentionally and knowingly subverted the course of justice by including false and misleading information. It would identify the drunks, weak sisters and plain incompetents who knew or should have known that the information was false, the document fatally flawed and put a stop to it. You need to try the steaks at Sparks to understand.
This may be the most effective Al Qaida operation ever to take out the hierarchy of Justice and the FBI at the same time, all by way of a self-inflicted wound.