Abolish the Foreign Intelligence Surveillance Court

As a former judge that has approved hundreds of search warrants, I strongly urge that Congress begin hearings to dissolve the Foreign Intelligence Surveillance Court (FISC) forthwith.

Why? Michael Horowitz, the Inspector General of the Department of Justice, conducted an investigation of alleged wrongful actions in applications for search warrants from the FISA (Foreign Intelligence Surveillance Act) Court. There were four separate applications to conduct electronic surveillance of former Trump assistant Carter W. Page.

The IG concluded that: “[T]he FBI obtained additional information raising significant questions about the reliability of the Steele election reporting, the FBI failed to reassess the Steele reporting relied upon in the FISA applications.” Additionally, and more damning, The IG also found that FBI investigators failed to disclose information that “was inconsistent with, or undercut, the assertions contained in the FISA applications.” The omissions “resulted in inaccurate information being included in the applications.”

Obviously, these are very serious findings that impact the civil rights of Mr. Page and gravely condemn the behavior and practices of the FBI.

In response to the IG report, FISC Judge Rosemary Collyer wrote an order to the FBI, "The frequency with which representations made by FBI personnel turned out to be unsupported or contradicted by information in their possession, and with which they withheld information detrimental to their case, calls into question whether information contained in other FBI applications is reliable.”

Obviously, Judge Collyer’s above conclusions are very damning to the FBI. Unfortunately, they also are condemnatory of Judge Collyer and the FISA Court. Why? Twice in 2018 Representative Devin Nunes, as a member of the House Intelligence Committee, sent letters addressed to the Court revealing the evidence of wrongdoing by the FBI.

Recently, Nunes explained to Martha MacCallum of Fox News, "I’m glad to see the FISA court come out and make a statement but your viewers need to know that the FISA court is also culpable in this madness, and I say that because we sent them two letters—very specific letters." Wrongfully the Court did nothing and Nunes faults the Court, "… I will say that the way that the courts conducted themselves is totally inappropriate. They ignored clear evidence that we presented to them. Remember, they had this. The American people did not have it, we had seen it, they had it, they did absolutely nothing about it. So, they’ve left really Congress no choice but to have to step in and fix this process."

However, Nunes’ 2018 “very specific letters” were not the first pleas to court. In April 2017, Mark Levin’s Landmark Legal Foundation presented allegations of wrongdoing and applied to assist the court, which was summarily denied by Judge Collyer. Recently, Levin stated, “We presented this judge with the evidence and filed it. Congress needs to find out now why these judges, even today, aren’t holding these people accountable.”

Why has the Court not exercised its Contempt of Court powers to investigate the actions of the FBI and the Department of Justice (DOJ)? This was the March 2018 public warnings of a cabal by the FBI and the DOJ made by former judge and now Rep. Louie Gohmert (R-Texas): “Also, there are too many FBI agents and too many DOJ officials that need to be investigated. Whether it’s Strzok, Ohr and, of course, Steele … all of those people need to be investigated. And you know, the FBI and the DOJ can’t investigate their own top people.”

Gohmert toyed with the idea of a special counsel but had faith in the Court and their power of contempt: “I don’t believe we need a second counsel to look into the FISA courts. The FISA judges, if they had any modicum of self-respect for their courts … they would have already a long time ago called the lawyers in and put somebody in jail for committing a fraud upon the court,” he said. “That’s contempt of court and somebody should have gone to jail long before.”

Granted, Representative Gohmert was not speaking directly to members of the FISA court. However, in the echo chamber ever-present in Washington D.C. it is difficult to believe that members of the court had no knowledge of Gohmert’s criticism.

As Nunes opined, “So, they’ve left really Congress no choice but to have to step in and fix this process." Every member of Congress should vote to abolish the FISA and begin debating protecting the civil rights of all Americans while secretly surveilling ever-dangerous foreign powers.