FISA Court Likely Abused If Steele Dossier Was Involved

Electronic surveillance or wiretapping is as old form of eavesdropping on personal conversations. Before 1928 there were no rules or controls for government or non-government eavesdropping. The Olmstead v United States case (277 U.S. 438, 1928) began the tsunami of electronic surveillance litigation and court rulings that were clarifying the rules of eavesdropping.

With modern technology ever-evolving and increasingly sophisticated surveillance equipment, legal and illegal, any electronic communication is liable to be “hacked.”

Federal and state governments sought and still seek to control non-government and foreign surveillances — illegal acts — with limited success.

Legal surveillances have become mainstays of governmental protections against crime and terrorism. From the 1950s, electronic surveillances were a main source for gathering information by government law enforcement agencies against criminal and foreign espionage actors.

Over the decades, the U.S. Congress and federal courts have outlined dos and don’ts of legal electronic surveillances. A main statute is Title III of the Omnibus Crime Control and Safe Streets Act of 1968 — authorized wire intercepts.

As foreign intrusions into American life and communications increased and foreign espionage increased, Congress finally acted in 1978 passing FISA. Over the years, amendments were added to meet rising technology advances.

The infamous radical Muslim attacks of September 11, 2001, in New York City, Pennsylvania, and at the Pentagon gave birth to the Patriot Act, a FISA auxiliary.

FISA and its amendments set forth the requirements needed for legal surveillances of American citizens and others, including that a special authorized federal court must determine that there exists probable cause to believe that a person or persons to be surveilled is/are “agent/s of a foreign power” and such person/s may be engaged in espionage or terrorism.

Probable cause is when the facts and circumstances within the agent’s knowledge and experience are reasonably trustworthy and are sufficient in themselves to warrant a reasonable belief a crime is about to be or has been committed.

The federal agent must sign an application for an electronic surveillance setting forth all the grounds for the court authorized “electronic search warrant.” The U.S. Attorney General or his authorized deputy or assistant must sign approving or endorsing the application. The signing agent must appear before a FISA judge who is appointed to this task by the Chief Justice of the U.S. Supreme Court. Under oath the signing agent must answer any questions truthfully that the judge may deem appropriate. On occasion, the authorizing authority might attend the court hearing.

The application must contain a full and complete statement of all true facts and evidence relied upon by the signing agent. There should be descriptions of the offense/s believed to have been or to be committed; the locations of the facilities involved, if known; where the foreign parties are; the type of communication; and the identity of the foreign party/parties, if known.

The application must detail all facts and circumstances the agent relies on and the reasons the facts and circumstances are credible. For example, the application may state a credible source as Confidential Source #1. This source need not be identified any further, but as the application and/or the agent must attest to the veracity of the source. Usually this means that the Source has been a reliable informant in past investigations.

The application must assert that all other investigative procedures are unworkable or too dangerous. The length of time for the surveillance must be stated, usually 60-90 days. All previous applications of surveillance of the same person/s or location must be stated.

If the notorious Steele “Dossier” were a source or basis of an electronic surveillance, the application and/or agent likely misled the court. The “Dossier” was likely known to the FBI or should have been known to be unreliable. The agent has an obligation to research the sources of application information and make sure the information has been and is now reliable.

If the Steele “Dossier” was, in whole or in part, a component of the surveillance application, then the agent and the Attorney General or his authorized agent should know the history and veracity of the “Dossier.” Any document used in application for a wiretap must be thoroughly vetted.

It has been reported that then FBI Director James Comey called the “Dossier” salacious and unverified.

It is likely, the federal judge questioned the applying agent about the sources and credibility of each and every source. What the agent and the application represented to the court must be absolutely true.

Otherwise, the judge issued a warrant on false and misleading information which would have contaminated and vitiated any and all fruits of the poisonous tree.

James H. Walsh was associate general counsel with the U.S. Department of Justice Immigration and Naturalization Service from 1983 to 1994. Read more reports from James Walsh — Click Here Now.