Critically important: FISA, the NSA, and the 4th Amendment

With FISA and the NSA in the news, learn why abusing them isn’t arcane procedural stuff but is, instead, critically important to American freedom.

Fifth Column Deep State FISA NSA 4th AmendmentDid the Obama administration illegally use its power in multiple ways to access NSA intercepts so that it could gain intelligence on – and kneecap – Trump’s administration? If so, then this is a scandal that dwarfs everything that happened during Watergate and highlights the real danger to our republic flowing from government abuse of NSA’s capabilities.

With luck, we’ll very soon read the House Intelligence Committee’s four-page document summarizing its investigation into alleged FISA abuses and the Trump-Russia collusion.  If we’re very lucky, that document will have attached to it the declassified intelligence and court documents supporting its contentions.  And just today, Rep. Trey Gowdy teased the contents of the House memo:

If you think your viewers want to know whether or not the dossier was used in [FISA] court proceedings, whether or not it was vetted before it was used, whether or not it’s ever been vetted — if you are interested in who paid for the dossier, if you are interested in Christopher Steele’s relationship with Hillary Clinton and the Democratic National Committee, then, yes, you will want the memo to come out.”

“Do you want to know that the Democratic National Committee paid for material that was never vetted, that was included in a court proceeding?” . . . .  “Do you want to know whether or not the primary source in these court proceedings had a bias against one candidate? Do you want to know whether or not he said he’d do anything to keep that candidate from becoming president?”

Much of what Rep. Gowdy is referring to centers around NSA intercepts and the Foreign Intelligence Surveillance Act, otherwise known as FISA. To understand just how the NSA, FISA, and the 4th Amendment fit together in the drama playing out before us, read on.

Fourth Amendment

To fully appreciate the meaning and purpose behind the 4th Amendment to the Constitution, one needs to travel back to the American colonies, around 1760. That was when the colonists, who considered themselves staunch British subjects, began to understand that the British government in London was not treating them well at all.

One of the government’s unfair acts was to impose such high taxes on certain commodities that the taxes threatened the entire colonial economy (and made life far more expensive for the British on the mainland). Some American colonists began smuggling those commodities, just as Brits themselves were extensively doing in England of the time.

The government in London responded in 1760 with “writs of assistance.” There will not be a test, but it will help you interpret contemporary events if you understand “writs of assistance.” These writs were open-ended search warrants authorizing a government agent to search private property — anywhere, at anytime — for contraband without ever having to show to a Court that the agent reasonably believed the search would actually yield contraband.  Such a “general warrant” was both a threat to British citizens and a profit source for those British agents who used the writs to line their own pockets in what was an incredibly abusive system.

In the 20th century, Director of Stalin’s Secret Police, Lavrentiy Pavlovich Beria, famously said, “Show me the man and I’ll find the crime.” He could easily have said the same about the mid-18th century British Crown’s systematic abuse of general warrants such as writs of assistance.

This abuse came to a head in London (and was, at the time, a cause célèbre throughout the colonies) when King George III authorized a general warrant against a political opponent, John Wilkes, in the hope that searching Wilkes’ home would produce evidence of something — anything — the Crown could use to pin a crime on Wilkes. ” British agents, having rooted through Wilkes’ private writings, found nothing worse than a truly bawdy poem. They seized the poem and proceeded to create a crime by surreptitiously publishing it as if Wilkes had done so himself – that being a necessary element of the crime of blasphemy in the U.K. of 1760 – and then charging Wilkes with the crime. Wilkes was then expelled from Parliament and fled to France.

When it came to drafting the Bill of Rights, the Founding Fathers remembered well the abuses to which the British government put general warrants and writs of assistance. For over two centuries, the 4th Amendment has protected American citizens from officials seeking to settle scores or obtain power by wrongfully imposing themselves into and onto private property despite having no having probable cause to believe any crime has been committed.

Not only are these searches illegal, but if our society is to remain free, government can never be allowed the power to conduct such unfounded searches. Nor can government be allowed to leverage these illegal searches into weaponizing FISA for political intelligence or political hits. In this regard, I am specifically referring to the successful political hit the FBI conducted on Michael Flynn using FISA intercepts, an outrage of its own that I will address at the end of this post.


The most famous illegal search in modern times — before the Trump-Russia collusion investigation at least – was the Watergate scandal that toppled the Nixon administration. Several people, some former FBI, broke into the Watergate Hotel around the time of the 1972 election and bugged the DNC leadership’s phones. It was not a 4th Amendment violation because the malfeasors were private actors and were not acting at the Nixon administration’s order, but their illegal actions became inextricably linked with abuse of government power when Nixon tried to cover up the matter.

Criminal Search Warrants

Today, if any government agency (say, for example, a member of the FBI’s Criminal Division) is investigating a crime and wants to do a search or begin a wiretap of communications, it must first apply to a U.S. Federal District Court for a warrant. It must show the Court that the proposed search or wiretap meets the 4th Amendment’s criteria; that the agency has probable cause to believe that a crime has been committed; and that it also has probable cause to believe that a search of a specific area or a wiretap of a particular line will lead to evidence related to that crime.

There is nothing complicated about this process. It is an integral part of America’s criminal justice system and known to every American who has ever watched a crime show on TV or watched a news report about a court throwing out a case because the government agency skipped its 4th Amendment obligations.  However, while a case may get knocked out of court, unless the polices’ behavior has been exceptionally egregious, officers do not normally face criminal liability for conducting searches that violate the 4th Amendment.

National Security Agency

Jump now to the National Security Agency. It has no criminal investigative purpose. Instead, it was formed in the 1950’s with a mandate to capture signal intelligence for foreign intelligence and counterintelligence purposes.

Almost seventy years later, modern communication systems mean that the NSA sucks up a goodly portion of the world’s electronic communications, including those of Americans within our borders. We know that last bit because, in 2013, James Clapper, then-Director Of National Intelligence, appeared before Congress. When asked, “Does the NSA collect any type of data at all on millions, or hundreds of millions of Americans?” Clapper’s response was swift and sure: “No, sir.  . . .  Not wittingly.” It later came out that in fact the NSA does, quite wittingly, sweep up electronic communications from hundreds of millions of Americans and that Clapper knowingly committed perjury with his answer. But as is true for everyone else in the Obama administration who committed criminal offenses, Obama’s DOJ and FBI declined to pursue criminal charges against him.

At any rate, all foreign and domestic electronic communications (and/or their metadata) that the NSA sweeps up get stored for a varying period in the world’s largest database. Absent safeguards, the temptation is “yuge” for government to abuse that resource. It takes the push of a button to find a crime when none is already suspected or to do opposition research and gain intelligence on political enemies. This is the stuff of Orwell’s 1984 on steroids.

Foreign Intelligence Surveillance Act

To prevent individuals in the government from abusing the NSA database, especially post-Watergate, Congress in 1978 passed the Foreign Intelligence Surveillance Act — or, as commonly called, FISA. This law provides that, if authorized agencies in government want to access NSA communications and to listen in on future particular communications, they can only do so in one of two ways: (1) under a presidential standing order directed solely at foreign powers and their communications made on foreign soil or (2) with approval from a special FISA Court, the proceedings of which are considered top secret.

Because of the constitutional implications inherent in abusive searches, because these searches are secret and thus can easily be abused without easy accountability, and because the information available through such searches is so vast and could have such an impact on our democratic republic as a whole, there are serious criminal and civil penalties for violating FISA, whether substantively or procedurally. If found guilty, a government employee can face up to five years in prison (50 USC § 1809), as well as being subject to suit in civil court (50 USC § 1810).

The people who currently have access to the NSA database are employees in agencies tasked with intelligence and counter-intelligence — as well as some civilian contractors the agencies employ. The CIA can access foreign intercepts because the CIA has responsibility for foreign intelligence, but its authority ends at our nation’s borders. Inside of our borders, most intelligence activities become the province of the FBI’s Counter-Intelligence division.

The FBI’s Counter-Intelligence (CI) Division is separate from the FBI’s Criminal Division. The FBI’s criminal division does not normally have access to the NSA’s database and, as Andrew McCarthy has written, “It is rare and controversial to use FISA wiretaps in criminal prosecutions.” (50 USC § 1806.)

The reality is that while NSA capabilities pose a huge threat to American freedom, we the American people face an equally huge threat from terrorists and other bad actors.  Thus we have to strike a reasonable balance between the equities those two realities present.

FISA Court, Minimization Procedures, and Warrants

The FISA Court rules and minimization procedures are designed to strike that balance between the competing equities.  If an NSA intercept picks up foreign subjects engaged in communications outside of our borders, then there is no problem. Our intelligence and counter-intelligence agencies can obtain that information based upon the President’s general authority. While a FISA warrant need not be requested for this information, the FISA Court still plays a central role in insuring that the NSA only disseminates this information and that the CIA and FBI CI may access it only in accordance with “minimization procedures.” (50 USC § 1801h.)

“Minimization procedures” are designed to insure that, if any innocent American citizens are a party in an intercepted communication but are not the subject of a FISA Warrant, their identities are redacted before the information is disseminated. If an authorized consumer of this intelligence makes the request, the NSA can “unmask” these redacted identities, but it can only lawfully do so when the need to know the American name has genuine intelligence or investigative value.

Further, the minimization procedures limit how the NSA database can be queried to the same end. If a government agent wants to search for intercepts, he is not supposed to be able to do so by conducting a search using the name of an American not subject to a FISA warrant, nor by any other query likely to return such information.

The FISA Court is also in the business of deciding whether to issue warrants to collect intercepts when a federal agency is investigation a particular American citizen. To overcome that citizen’s right to be free from illegal government search, the government agent seeking to monitor the communications must establish for the FISA Court that the American citizen is in effect an “agent of a foreign power” (50 USC § 1801(b)(2)).

The Issues

With all of that as preamble, here is what is at issue.

Q1: Did the Obama administration wrongly use its power to access NSA intercepts in multiple ways and under the guise of the Trump-Russia collusion narrative (created as DNC opposition research) in order to gain intelligence on its political enemies?

Q2: Did the Obama administration wrongly “unmask” NSA intercepts to target the Trump administration? Was that information then leaked to the public to Trump’s detriment?

Q3: Was the Obama administration sharing NSA intercepts with Democrat political operatives?

Q4: Did the Obama administration wrongly (but legally) use FISA information to bring down its political enemies in the Trump administration?

If the answer to one or more of the first three questions is yes, then this is a scandal that dwarfs anything and everything that happened during Watergate. It is the government weaponizing our intelligence assets for political gain — something far beyond what happened in Watergate.  People can’t skate on this.  If it happened, everyone involved needs to be criminally punished or history will mark these events as the beginning of the end for our republic.

The fourth question refers to the outrageous political hit orchestrated by the FBI on Michael Flynn.  It is a textbook example of why all of this matters.

Let’s take these questions one at a time.

Q1: Did the Obama administration wrongly use its power to access NSA intercepts in multiple ways and under the guise of the Trump-Russia collusion narrative (created as DNC opposition research) in order to gain intelligence on its political enemies?

Several news outlets have reported that, in the summer of 2016, the Obama government tried to get a FISA warrant to spy on some person or servers within the Trump organization, but that the FISA Court rejected the application as deficient. Those same news outlets reported that a FISA Court approved the government’s second effort in in October 2016.

The following will help put into perspective how pathetic the government’s initial 2016 FISA request must have been:

According to the Department of Justice’s official numbers, of the thousands of applications made by the federal government to FISC, none have been denied since 2009. Rarely, the court has asked the government to modify its case. In 2013, the US made 1,588 applications; 34 were modified. In 2014, it made 1,379 applications; 19 were modified. In 2015, it made 1,457 applications; 80 were modified.

Andrew McCarthy has itemized the questions that need to be answered as regards those warrants requested, and the one (or more) approved, in 2016:

  • Were associates of President Trump, members of his campaign, or even Trump himself, subjected to foreign-intelligence surveillance (i.e., do the FISA applications name them as either targets or persons whose communications and activities would likely be monitored)?
  • Was information from the Steele dossier used in FISA applications?
  • If Steele-dossier information was so used, was it so central that FISA warrants would not have been granted without it?
  • If Steele-dossier information was so used, was it corroborated by independent FBI investigation?
  • If the dossier’s information was so used, was the source accurately conveyed to the court so that credibility and potential bias could be weighed (i.e., was the court told that the information came from an opposition-research project sponsored by the Clinton presidential campaign)? The FBI has said that significant efforts were made to corroborate Steele’s sensational claims, yet former director James Comey has acknowledged (in June 2017 Senate testimony) that the dossier was “unverified.”
  • If the dossier was used in FISA applications in 2016, has the Justice Department — consistent with its continuing duty of candor in dealings with the tribunal — alerted the court that it did not succeed in verifying Steele’s hearsay reporting based on anonymous sources?

Q2: Did the Obama administration wrongly “unmask” NSA intercepts to target the Trump administration? Was that information then leaked to the public to Trump’s detriment?

The known, uncontested facts definitively answer the first part of the question. These facts establish that one or more people in the Obama administration went on an unmasking binge with NSA intercepts to target the Trump administration. Susan Rice, a woman with no investigative authority, seemingly made over two hundred and sixty such requests. She subsequently testified before Congress that she did not make those requests and did not know who was using her name to make them.  Thus there is a substantial portion of these unmasking requests that are illegal per se.

This illegal abuse provided purely dometic political intelligence, as many of the unmasking requests didn’t have the slightest connection to Russia. Further, many of these unmaskings very likely provided the grist for the tsunami of “leaks” to the press that swamped the Trump team at the end of 2016 and in the first half of 2017 — although we won’t know that for sure until the information is released to the public. House Intelligence Committee Chairman Rep. David Nunes raised these issues in a March 2017 press conference and the Democrats immediately tried to have him removed from the Committee for revealing classified information. Ultimately, that failed when the House Ethics Committee cleared Nunes.

Q3: Was the Obama administration sharing NSA intercepts with Democrat political operatives?

There is evidence to suggest that the FBI CI unit was allowing Democrat political operatives working as contractors to FBI CI – in particular, Crowdstrike and Fusion GPS – to access unredacted, raw NSA intercepts before April, 2016. And there is evidence to suggest that, after April 2016, Fusion GPS retained access to NSA intercepts through Nellie Ohr and her husband, Bruce Ohr, an Assistant Attorney General in Obama’s Justice Department. If one or both is true, in addition to this access being illegal, one must then ask if any intercepted NSA information found its way into the “Steele Dossier”.

I won’t step on the extensive work done on those questions by Sundance at Conservative Tree House. He has laid out his arguments regarding the above questions in time line form in a post he calls Operation Condor. It is a long read but very worth the effort. If in fact the answers to the above questions are “yes,” then a line of people from the Obama administration needs to be facing jail time.

Q4: Did the Obama administration wrongly (and whether legally or illegally) use FISA information to bring down its political enemies in the Trump administration?

To understand how NSA intercepts can be misused, we have only to look at what happened to Michael Flynn. His is an outrageous case with direct parallels to the original Wilkes case back in the 1760’s that gave us the 4th Amendment in the first place. Flynn, like Wilkes, was the object of a a politically motivated hit that had its roots in a government search.

In 2012, Obama named Michael Flynn to head the Defense Intelligence Agency (DIA).  Flynn held that post for two years DNI James Clapper (the one who lied to Congress) and CIA Chief John Brennan forced him out.

During his tenure at DIA, Flynn had made himself a thorn in the Obama team’s side. In a 2016 op-ed, Flynn wrote that he was fired for developing intel and analysis – since proven true – regarding Syria and the ISIS’s rise.  Flynn’s DIA analysis directly conflicted with the Obama administration’s preferred narratives about the Middle East, from Libya to Syria to Iran and ISIS.

Flynn further expressed views that were not only non-pc, but were the polar opposite of Obama’s foreign policy. So it was that, in the run up to the 2016 election, Flynn tweeted that a “fear of Muslims is RATIONAL.”

To make matters worse (for the Obama administration), Flynn also became a very loud voice condemning the travesty of justice that was the FBI/DOJ exoneration of Hillary Clinton. As Flynn quite rightly stated [and I note here my absolute agreement based on my training as a lawyer and my experience an Army officer, who held a security clearance and who worked with classified material extensively] he or anyone else who did “a tenth of what she did” would have been put in jail.

No wonder, then, that the Obama administration was determined to keep Flynn out of office — forever, if possible. Thus it was no surprise that, when President Obama and President-Elect Trump met on November 10, 2016, Obama explicitly urged Trump not to name Michael Flynn as National Security Adviser. He justified this position by stating that Flynn was “problematic and . . . prone to crazy ideas.”  By “crazy ideas,” Obama apparently included the notion that ISIS wasn’t the JV squad. Seven days later, Trump nominated Flynn as his National Security Adviser.

What happened next was a political assassination of the first order. In December, during the transition period for the incoming Trump administration, Flynn had two innocuous phone conversations with Russia’s Ambassador to the U.S., Sergey Kislyak. On December 22, Michael Flynn asked Kislyak to have Russia “delay the vote on or defeat a pending United Nations Security Council resolution.” On December 29, in response to Obama’s announcement that he was taking retaliatory measures that day to punish Russia for interfering in the 2016 election, Flynn asked the Russian Ambassador to “refrain from escalating the response.”

Someone who saw the NSA intercept for those two conversations then had Flynn’s identity unmasked. We do not know who did it or why they did it, or whether they acted lawfully or unlawfully. What we do know is that the information was passed to the upper echelons of the FBI, at least to the level of FBI Assistant Director Andrew McCabe. McCabe then used those intercepts to open up a Logan Act investigation into Michael Flynn. We do not know who else at the FBI and the DOJ knew and approved of this. But we know that the Obama White House got briefed about it.

You cannot possibly grasp how outrageous this is unless you first understand about the “Logan Act.” The Logan Act, 18 USC § 953, holds that it is illegal for “unauthorized persons” to negotiate with “foreign governments” to “influence the measures or conduct of any foreign government . . . in relation to any disputes or controversies with the United States.”

The Logan Act has been on the books since 1799. By its explicit terms, the Logan Act would easily apply to at least a fourth of all the people who have ever served in Congress, as well as every executive appointee for all prior incoming administrations – including Obama’s – not to mention a whole host of private actors from ex-Presidents to ex-Chicago Bulls players, would have been subject to prosecution. But here’s the important thing: Before Flynn found himself in the Obama administrations cross hairs, for the entirety of the Logan Act’s 219 year existence, the government had never successfully prosecuted anyone under that statute.

Let me say that again.  No one.




Even Michael Flynn was not prosecuted. He was merely threatened.

You should also keep in mind that this totally anomalous, bizarre, unprecedented Logan Act criminal case came from the same FBI that had announced just six months earlier its decision that Hillary Clinton had been careless with her email, but not so careless that she had violated national security, subjecting herself to criminal penalties. Per James Comey, the FBI exonerated Hillary in significant part because it claimed to be unable to find any cases in which a person was successfully prosecuted on facts similar to Clinton’s matter.  And yet here it was, waving around a a Logan Act claim with not just no prior similar fact patterns, but no prior cases, period.  Wow.

There was never even the slightest chance that the DOJ would prosecute anyone under that the Logan Act, let alone prosecute the in-coming NSA Advisor for talking with a foreign diplomat preparatory to taking power within 30 days. To even suggest it is ludicrous. Moreover, there was no need to investigate the matter. If the DOJ wanted to prosecute the Logan Act violations, the alpha and omega of the matter were the NSA intercepts. Absolutely nothing else Flynn could say outside of those conversations was relevant.  There was no legitimate reason to interview Flynn.

It is obvious on its face what Deep State Andrew McCabe, the Obama White House, and whoever else was involved were doing. They were setting up a perjury trap for Flynn based on the unmasked intercepts.

But it gets far worse. First off, McCabe waited over a month to set up an FBI interview with Flynn. What he arranged, in fact, was a sandbagging. McCabe had an assistant in his office call “to set up a meeting with Flynn without telling his scheduler the purpose — and no one thought to ask. As a result, Flynn went into the interrogation both unprepared and without legal representation.” Flynn apparently did not realize that he was even being interrogated in a criminal investigation until well into the meeting.

Will it surprise you to learn that the FBI Agent who was sent to conduct the interview was Peter Strzok? James Comey later testified to Congress that Strzok’s report indicated that he did not believe Flynn committed perjury and that, to the extent that his answers deviated from tapes in FBI possession, they appeared to be legitimate failures of memory rather than an attempt to deliberately lie to the FBI.

Despite these contemporaneous conclusions about Flynn’s innocence, the FBI still maintained an open investigation after the interview. Indeed, it not only kept the investigation open, it immediately leaked news about the investigation’s existence to virtually every news outlet in America. The leak did not include that contemporaneous conclusion that Flynn was not deliberately lying in his interview. The FBI also failed to leak that nothing in the conversations with Flynn touched on collusion or had any counter-intelligence value.

Instead, relying on the FBI’s leaks, the networks that very night were reporting that Flynn was being investigated as part of “ a broader counterintelligence investigation of Russian activities in the US, law enforcement and intelligence officials told CNN.” A lie by omission is still a lie — and the FBI, through it’s tame media, lied and slandered through its teeth.


The attack on Flynn wasn’t just a political hit. It was a carefully and fully orchestrated political hit designed to put the entire Trump administration on the defensive. And it all began with the Obama administration’s unmasking of NSA intercepts. All of this — FISA, FISA Courts, 702(17) “About Queries” — all of this may sound very dry, but it could not be of greater importance at the moment.  This is so because, if that unmasking was done in reliance on phony oppo-research “evidence” and if the FBI knew just how phony the evidence was, everything the FBI and DOJ did from the moment they went to the FISA court violated the 4th Amendment and all relevant federal statutes flowing from that amendment. It was, as noted at the top of this post, a series of staggeringly illegal acts all intended to interfere with an American presidential election and, when that failed, to destroy a lawfully and properly elected presidential administration.

The House Intelligence Committee Memo that Rep. Trey Gowdy (see the opening to this post) cannot be released fast enough.


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