History, Law, Media Criticism, Political Commentary

Trey’s Letter To The FISA Judges

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In light of recent revelations, if Nunes is right and the FISA judges involved were mislead by the FISA applications, they’re in an interesting position. You would think that they would infuriated at the agents who mislead them, and caused them to authorize the violation of the Constitutional rights of Carter Page and others involved. But we’ve heard nothing from them. Trey Gowdy is one of the few people on the Hill who has seen the unredacted documents, so he would know best the actual circumstances. He hasn’t written it yet, but here’s a draft of the letter I’d write if these allegations are true, and I were him, to give him a start.

“To the Honorable Judge ______:

It has come to the attention of this committee that the FISA application(s) for warrant that you authorized, were authorized on the basis of information that went beyond misleading, in that there were actual lies of both omission and commission, and that the information presented therein was both uncorroborated and unverified, with much of ostensibly independent sources being in fact circular. This was done so with the signature of the FBI personnel who applied for the warrants. It is understandable that in the light of the information you were provided that you would authorize the warrants.

But because the authorization was based on false or misleading information, your authorization in fact resulted in the deprivation of fundamental civil rights, guaranteed by the Constitution, of American citizens. As you are surely aware, the granting of a surveillance warrant out of public view is a far greater responsibility than upholding due process in an open court, and I’m sure that you take this grave responsibility to protect the rights of American citizens with the utmost seriousness. Speaking for myself, were I in your position, I would be infuriated at how I had unknowingly participated in such an act, as a result of duplicitous and lawless behavior on the part of the Executive branch.

As a legislative body, Congress has no ability to enforce the law against lawbreakers, but were I in your position, I would act on that justifiable anger, by appropriately sanctioning the individuals who participated in this lawlessness, and abused your court and the system of justice.

I hope that you are in agreement with our position, and will take the action necessary to ensure that nothing resembling this happens again.

If, however, you do nothing, our committee will be compelled to take such inaction as an acquiescence to the unlawful actions. In such an event, while the branch created by Article I has no direct power to discipline employees of the branch created by Article II, this House does have the power to discipline unlawful and unconstitutional behavior of those appointed to the branch created by Article 3. It is my sincere hope that the recommendation of this committee to the full House to use such power will be unnecessary.

Respectfully,

Congressman Trey Gowdy

Chairman, House Committee of Oversight and Reform”

15 thoughts on “Trey’s Letter To The FISA Judges”

  2. I wonder if the Judge perceived the charade and granted the warrant with a wink and a nod. If not – meaning the judge was misled – then my apologies to the bench for suggesting this.

    1. IANAL, but AFAIK, a judges power is more or less plenary for the things that happen in his court. If someone lies to him, he can always be called back into court and answer for their deeds.

      Justice demands no less.

  3. FISA courts the result of the Church committee recommendations have always been on very shaky constitutional ground.

    I would amend that letter’s last paragraph to not express the “hope” that it’s power not be exercised. Instead I would encourage the House committee to go full out and start hearings on the Carter Page case as a matter of needed reform, their mission. There seems to be clearly missing checks and balances here. If not corrected now, they will only happen again.

  4. Under the File Heading: Put Up Or Shut Up….

    One reform I’d like to see, is an Advocate General’s Office setup as part of the FISA court. The Advocate Generals would consist of TWO members of Congress, one from the Senate and one from the House, preferably from opposing parties, but not a requirement, that would sit in on FISA court hearings with the ability to question sources and methods and with the ability to make amicus curiae recommendations to the judge. Select intelligence committee members would be the ideal candidates here since they already possess the necessary security clearances. Advocate Generals would serve two year terms and MUST be rotated afterwards. In other words NO Advocate General would be allow to serve consecutive terms. I’d be okay with non-consecutive terms.

    1. Runs afoul of Separation of Powers, and puts the lawmakers in danger of working for a living.

      I’m sure something constitutional could be contrived to achieve a similar objective, though.

      1. Runs afoul of Separation of Powers

        In what way? Judiciary has powers over the Executive, Legislative has powers over the Judiciary. In both cases the branches can decide whether or not to exercise their powers, with accompanying potential consequences.

        1. What exactly could the legislative branch do and what would be the process and circumstances that would allow them to take action? Any lawyers or procedural wonks written anything about it?

      2. The Advocates General would not be making the decision on what warrants to grant. They would, as presented, observe the process and be in a position to interject questions the judges should be asking but apparently are not.

        This also seems to me more than a full time job for 2.

  5. Rand:

    A blogger going by the handle of “Montana Skeptic”, who appeared frequently on Seeking Alpha, has been silenced by Elon Musk.

    Montana’s claim to fame is being one of the more articulate spokesmen for being “short” (investing to profit from the stock declining in price) on Tesla. His primary thesis is that Tesla has never made any profit on its cars, requiring recurring infusions of new capital to keep operating, and what makes Tesla’s finances particularly precarious is that the last round of capital was raised by borrowing rather than by selling more stock.

    He always disclosed that he was “short” Tesla, but he advised that the stock valuation of Tesla was “crazy” (its market cap is midway between Ford and GM, and they make many times fewer cars), and that it was risky to either be long (own shares in expectation of increase in value) or short (own option contracts or borrow stock in a brokerage account in anticipation of the shares declining).

    Montana Skeptic was recently “doxed”, revealing his name and the investment firm he works for, and it is claimed that Elon musk called someone at that firm and threatened them with a defamation lawsuit.

    There was never any “flamboyant” language involved; Montana Skeptic’s columns at Seeking Alpha were always entertaining, but all of his remarks were focused on nuts-and-bolts matters — will Tesla make enough money this year to pay its loans, if not, will they be able to sell more stock, how many cars is Tesla making, are they able to find enough customers for them, are they able to ship those cars to customers in a timely manner, will they be able to handle the costs of warranty repairs, and so on.

    These are scary times we live in.

    1. That is an underhanded move by Musk. But it is common these days on the left and it isn’t surprising to see media figures cheering him on.

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