Did The FISA Court Finally Reject The FBI's Advances?

from the too-coy-by-far,-and-with-too-many-unknown-details dept

Somewhere behind the lurid imagery of the unverified intelligence report BuzzFeed dropped on the web earlier this week is a possible story about the FISA court deciding, for once, that a government agency has gone too far. My apologies to those who've made New Year's resolutions to eat better: everything about this should be taken with several grains of salt.

First, there's the intelligence report itself, which has apparently been circulating for a long time before BuzzFeed stepped up and actually published it. The Guardian reports Mother Jones apparently had seen the document as early as last September. The previously anonymous source of the Trump/Russia intel report has now been outed, but to date, the only thing that has truly been confirmed are biases.

The document, however, was considered legitimate enough by John McCain to pass it on to the FBI. It includes -- along with the famous watersports details -- information on alleged contacts with Russia that Trump used to obtain information on political rivals. According to the document, Trump is both reliant on Russian intelligence services for info and a target for blackmail, should it be "needed," thanks to antics on Russian soil detailed in the report's pages.

The FBI has refused to comment on the document, other than to confirm that it has seen it. But there's another detail buried in the Guardian's report that suggests -- again, via several anonymous sources -- that the supposed intel report propelled the FBI to the FISA court to ask permission to spy on Trump's associates. This detail was pulled out of the densely-packed Guardian report by Jason Koebler of Vice.

Here's the passage from the Guardian article:

The Guardian has learned that the FBI applied for a warrant from the foreign intelligence surveillance (Fisa) court over the summer in order to monitor four members of the Trump team suspected of irregular contacts with Russian officials. The Fisa court turned down the application asking FBI counter-intelligence investigators to narrow its focus. According to one report, the FBI was finally granted a warrant in October, but that has not been confirmed, and it is not clear whether any warrant led to a full investigation.

How the Guardian "learned" this is never explained. The "one report" is an article at Heat Street, which also relies heavily on anonymous sources:

Two separate sources with links to the counter-intelligence community have confirmed to Heat Street that the FBI sought, and was granted, a FISA court warrant in October, giving counter-intelligence permission to examine the activities of ‘U.S. persons’ in Donald Trump’s campaign with ties to Russia.

According to Heat Street, this supposed application came on the heels of reports that Trump's private server was in frequent communication with a Russian bank. That story has been debunked thoroughly, but that doesn't necessarily mean the FBI didn't initiate an investigation on the (temporary) strength of these allegations. For it to have headed to the FISA court with a warrant app before the report was debunked seems unlikely, much less to have this one granted, rather than the one it wanted earlier in the summer.

That being said, if the FISA court did turn down the FBI's summer warrant application, it would be an anomaly. As Koebler points out, the FISA court hates being referred to as a "rubber stamp," but it can't really argue with its own track record.

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.

It could be that the Guardian story and the Heat Street story are actually referring to the same warrant applications. The FBI could have been asked to modify the order in the summer and had the fixed version approved in October. A BBC article claims it was the same warrant app -- rejected twice -- seeking info on Trump's ties to Russian banks. (Again, this is a firsthand account backed by anonymous sources.)

Their first application, in June, was rejected outright by the judge. They returned with a more narrowly drawn order in July and were rejected again. Finally, before a new judge, the order was granted, on 15 October, three weeks before election day.

The FISA court could still be pitching an application rejection shutout. We won't know more until the 2016 numbers are released by the DOJ and even then, we won't know much. If there's a denial or two on the record, it won't necessarily confirm these reports. And if it was just a demand for modification, the FBI's Trump-related warrant will just be one of the few dozen the FISA court issues every year.

Heat Street, however, claims there were two FBI FISA warrant applications, with the second directly tied to the Russian bank/Trump server story. Whatever the case is, the leaked intelligence report most likely wasn't the basis for the FBI's summer warrant application, as it may not have even been released yet to those who paid to have it compiled: Trump-opposing Republicans and Democrats. If the patrons truly believed everything in the report, you'd think they would have released it prior to the election. Then again, the document may have been shopped for months to sites far more reluctant than BuzzFeed to publish unsourced allegations.

Among all the unverifiables stands the FISA court, which may have withheld its rubber stamp just this once. As Vice's Koebler points out, even if it did, there's no reason to applaud its singular rejection.

[I]f The Guardian and HeatStreet reports are accurate, when the FBI decided to go after the rich, powerful, and politically well-connected, it was met with pushback. If only the rest of us could be so lucky.

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Filed Under: donald trump, foia, rejection, russia