Judicial Watch raised the hackles of Republicans this weekend when it announced that the Justice Department had said that no hearings were held prior to issuing the FISA warrant for former Trump advisor Carter Page. Many Republicans took this to mean that something nefarious was afoot with the investigation of Page, President Trump’s former campaign advisor, but that isn’t necessarily the case.
“It is disturbing that the Foreign Intelligence Surveillance courts rubber-stamped the Carter Page spy warrants and held not one hearing on these extraordinary requests to spy on the Trump team,” said Judicial Watch President Tom Fitton in the press release. “Perhaps the court can now hold hearings on how justice was corrupted by material omissions that Hillary Clinton’s campaign, the DNC, a conflicted Bruce Ohr, a compromised Christopher Steele, and anti-Trumper Peter Strzok were all behind the ‘intelligence’ used to persuade the courts to approve the FISA warrants that targeted the Trump team.”
The Judicial Watch press release fails to tell the whole story, however.
Aside from mischaracterizing surveillance of someone that the first paragraph of the release refers to as “a former Trump campaign part-time advisor” as “spy[ing] on the Trump team,” the obvious question to ask is how many hearings are normally held on FISA applications. The answer is not many, but that is not proof of any wrongdoing on the part of the FBI or the FISA court.
The fact is that search warrants of all sorts are almost always issued by judges without hearings because the law does not require a hearing. If you have ever watched a television cop show, you’ve seen the process. The police gather preliminary evidence to show probable cause and then take this to the judge to get the warrant. The search warrant is then served, or, in the case of a FISA warrant, surveillance is conducted. The search and/or surveillance are then used to gather more evidence to determine whether an indictment, arrest and prosecution are warranted.
Logically, it makes sense that the law would not require a hearing before a warrant for a search or surveillance is issued. Who would take the opposing side in the hearing? If the suspect were invited to defend himself in a hearing to consider whether his property should be searched or he should be monitored, law enforcement would lose the element of surprise. It would be an extremely dense suspect who did not take the warning and clean out any incriminating items or break off contact with people who could implicate him in a crime.
So, who acts on the behalf of the suspect to prevent law enforcement agencies from abusing their power to search and surveil innocent Americans? The answer is that both the Justice Department and the judge act on their behalf.
In Just Security, former FBI agent Asha Rangapappa described the process of obtaining a FISA warrant in a 2017 article titled, “It Ain’t Easy Getting a FISA Warrant: I Was An FBI Agent and Should Know.” To get a FISA warrant, the FBI first must conduct a threat assessment to determine that there is a national security reason for the warrant. Second, the FBI would have to gather evidence to show probable cause that the target of the warrant was knowingly working on behalf of a foreign entity. Mere fraternization with agents of a foreign power would not be sufficient to meet this requirement. Finally, the warrant application is submitted to Justice Department attorneys who verify the claims made by the applicant and determine whether the evidence is sufficient to present to a judge. The application can be returned to the investigator multiple times until the evidence is both strong enough to meet the legal standard and able to be corroborated.
“It’s true that since its inception in 1978, the FISC has approved the vast majority of the over 25,000 FISA applications it has reviewed – some estimates put the number at over 99 percent,” says Rangapappa. He adds, “But that’s not surprising given the extensive process described above.”
This is confirmed by a 2013 letter to Congress from Reggie Walton, the presiding judge of the Federal Intelligence Surveillance Court, in which the process for approving FISA warrants was discussed. The letter does state that in some cases where there is “special legal or factual concern,” the Court may request face-to-face meetings with law enforcement. The “frequency of hearings varies depending on the nature and complexity of matters pending before the Court at a given time, and also, to some extent, based on the individual preferences of different judges,” the letter says. In many cases, problems or questions about applications are resolved with telephone calls or informal contacts.
“FISA does not provide a mechanism for the Court to invite the views of nongovernmental parties,” Judge Walton wrote. “In fact, the Court's proceedings are ex parte [i.e., without a response from the opposing side] as required by the statute… and in keeping with the procedures followed by other courts in applications for search warrants and wiretap orders.”
The 99 percent approval rate for applications, the letter notes, is based only on “final applications submitted to and acted on by the Court.” About a quarter of applications have “substantive changes” before they are approved. The judge noted that the approval rate for wiretap applications in domestic criminal cases is higher than that of FISA warrant applications.
Andrew McCarthy, a writer for National Review and a former federal prosecutor, agrees that hearings are not a part of the process for getting warrants. On Twitter, McCarthy said, “There generally are no hearings on warrants, and you don’t want there to be because the four corners of the warrant application must state the probable cause. If they don’t, the judge should reject the application, not hold a hearing.”
“In nearly 20 years as a prosecutor, and hundreds of warrants, I never had a hearing to get a warrant,” McCarthy continued in a second tweet. “I had judges tell me ‘no,’ or tell me I needed to beef up this or that allegation with more solid evidence. But never a hearing.”
So, it’s true when Judicial Watch says that there was no FISA hearing before the warrant to surveil Carter Page was granted. It’s also true that it is not a big deal that there was no hearing. The law does not require a hearing and hearings are conducted only in rare circumstances. By making a mountain out of a nonexistent molehill, Judicial Watch has done a disservice to people who trust the organization to expose wrongdoing in the justice system. The press release is an overtly partisan attempt to smear the Justice Department and undermine an ongoing investigation.
Originally published on The Resurgent
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