Back to the Future with FISA
The secret court, most powerful in the land, was always about the partisan targeting of American citizens.
Last month DC Circuit Court Judge James Boasberg gave FBI lawyer Kevin Clinesmith probation, a small fine, and community service instead of the five years in prison and the $250,000 fine his crime deserved. As it happens, Boasberg is also presiding judge of the Foreign Intelligence Surveillance Act (FISA) court that Clinesmith had defrauded. More than a travesty of justice, Boasberg’s action lifted the robe of secrecy on the FISA court, whose unchecked power troubles many in Congress.
"The FISA court is a judicial body with no parallel in American history,” Sen. Ron Wyden explained in 2013. “A group of judges operating in complete secret and issuing binding rulings based solely on the government’s arguments.” As Sen. Richard Blumenthal clarified, the FISA court “exercises vast invisible power.” From the start, that powerful court was all about targeting American citizens.
“FISA was originally enacted in the 1970s to curb widespread abuses by both Presidents and former FBI officials of bugging and wiretapping Americans without any judicial warrant,” Sen. Patrick Leahy testified in 2002. One of the victims was the leftist Morton Halperin, who wrote in Defense Strategies for the Seventies that the Soviet Union constituted no danger to the United States, and the USSR never contemplated the use of military force against Western Europe. Halperin’s telephone was illegally tapped by officials in the Nixon administration.
“It is a great pleasure for me to testify again on FISA,” Halperin said in the same 2002 hearing. “As you know, I was deeply involved in the process that led to the enactment of it. I urged the Congress to support it. I still think it is in the national interest and plays a vital role.”
Sen. Edward Kennedy introduced the FISA Act in 1977, during the administration of Jimmy Carter. Ronald Reagan’s defeat of Carter so enraged Kennedy that he sought help from the Soviet Union, then headed by the KGB’s Yuri Andropov, a hard-line Stalinist. Kennedy offered to help Andropov deal with Reagan and in return the Soviet boss would lend the Democratic Party a hand in challenging Reagan in the 1984 presidential election.
Sen. Kennedy collaborated with a hostile foreign power to influence an American election. The FISA process failed to stop or expose this criminal collaboration, which did not emerge until the 1990s. Greater failures were yet to come. As Sen. Arlen Specter also testified in 2002, FISA played no role in stopping the terrorists of September 11, 2001.
“The failure to obtain a warrant under the Foreign Intelligence Surveillance Act for Zacarias Moussaoui was a matter of enormous importance,” Specter said. If American officials had gotten into Moussaoui’s computer, and followed up on reports of terrorist flight training, Specter said, “9/11 might well have been prevented.” It wasn’t, yet the FISA court, a body with no parallel in American history, continued to wield unchecked power.
By 2016, the “composite character” David Garrow described in Rising Star: The Making of Barack Obama had transformed the nation into a more authoritarian arrangement. The outgoing president picks his successor and rigs the FBI and DOJ to support Hillary Clinton and attack Donald Trump. His campaign was not collaborating with Russia, so the task for the FBI and DOJ was to get creative. Enter Kevin Clinesmith, of the FBI’s national security and cyber law division.
The FBI lawyer falsified an email to say that U.S. Navy veteran Carter Page was not a CIA asset, when in fact he was. That exposed the Trump associate to surveillance under FISA. Were it not for DOJ Inspector General Michael Horowitz, the crime would have gone undiscovered.
In August 2020 Clinesmith pleaded guilty to falsifying the email, so in January 2021 he was an admitted felon awaiting sentence, not a “defendant,” as Boasberg described him. The FISA court boss also told the court Clinesmith had made a “misstatement,” a strange description of deliberate falsification. The FISA warrant to surveille Carter Page, Boasberg also explained, would have been approved even without the lawyer’s misstatement.
Judge Boasberg made these statements in open court, and his conduct is evidence of the way he acts as presiding judge of the FISA court. That body holds a distinct advantage over the U.S. Supreme Court, which operates in public, with rulings and opinions endlessly analyzed.
In 2014, Chief Justice John Roberts appointed Boasberg to the FISA court, but there was no public hearing to determine his fitness to serve on that body. The president of the United States can be impeached and so can justices of the U.S. Supreme Court. It remains unclear if FISA court judges can be impeached, and whether the secret court would allow any impeachment attempt to be made public.
Boasberg knew the FISA court would have approved the warrant on Carter Page without Clinesmith’s falsification. So Boasberg doubtless signed off the entire process, bogus dossier and all. The FISA court boss then slips back into his circuit court robe and lets Clinesmith go with a tap on the wrist. This has no parallel on the U.S. Supreme Court.
John Roberts, Sonia Sotomayor, Clarence Thomas et al cannot let stand a lower court ruling then step down to the lower court and participate in the sentencing process. So even without lifetime tenure – FISA court judges have a seven-year term – Boasberg holds a distinct advantage. In effect, Boasberg is the nation’s most powerful justice, and the FISA court the most powerful in the land.
Kevin Clinesmith was the only person to face criminal charges from the investigation of U.S. Attorney John Durham. The alleged man of integrity brought no charges against FBI director James Comey and FBI counterintelligence boss Peter Strzok. They operated above the law and got away with it, and that travesty of justice will have serious consequences going forward.
If the FBI wants a warrant to spy on any American for partisan purposes, presiding FISA court judge James Boasberg will be okay with it. Meanwhile, Morton Halperin, who was “deeply involved” in the creation of FISA, is now a senior advisor with the Open Society Foundations, founded by George Soros. The leftist billionaire is surely delighted with the way things have turned out.