On the wire
February 5, 2018
I noticed something about wiretaps authorized by the Foreign Intelligence Surveillance Act (FISA) Court that should trouble everyone regardless of party.
18 US Code sec. 2518(1)(b) requires a wiretap warrant application in federal criminal (not intelligence) matters to include "a full and complete statement of facts" relied on in applying for the wiretap. In contrast, 50 US Code sec. 1804 specifies what must be provided to obtain a FISA Court (intelligence investigation) wiretap of a U.S. person. Subsection (a)(3) requires only a "statement of facts." This is a big difference.
The House Republican Intelligence Committee released a memo last Friday discussing the FISA warrant to wiretap Carter Page. Since then much attention has focused on whether the FBI and Justice Department provided the FISA Court "a full and complete statement of facts" (such as that the Steele Dossier was commissioned and paid for by the Hillary Clinton campaign). Defenders of FISA claim the judges demand all the facts and ask probing questions. But the statute guiding FISA judges in issuing wiretap warrants doesn't even seem to require "a full and complete" set of facts. 18 USC (criminal procedure, which has existed for centuries) had to be the basis for 50 USC (intelligence procedures), which came much later. Any changes would have been intentional. It seems Congress intentionally allowed the FBI and Justice Department to tell the court only partial truths.
Given this gaping loophole, could it be that the FBI and Justice routinely tell the FISA Court only facts that support a warrant? Could that be why the FISA Court never turns down an application?
Just because you're paranoid doesn't mean you aren't being wiretapped.