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Conservatives Say No FISA Renewal Without Answers

Rand Paul FISA Court
Before December 15, 2019, Congress must decide whether it will renew three distinct FISA authorities. As George W. Croner, a Senior Fellow in the Program on National Security at FPRI, and former principal litigation counsel in the Office of General Counsel at the National Security Agency explained in an article for the Foreign Policy Research Institute, while none of the provisions facing sunset on December 15 constitutes legislative authority for an entire collection program as was the case with the debate surrounding the reauthorization of FISA Section 702 in 2017, each of these provisions represents authority for other discrete components added to the FISA framework as part of the legislative response to the September 11, 2001 attacks.

The three authorities are: (1) the “business records” provision (known variously as Section 215 of the USA Patriot Act of 2001 or FISA Section 501 and presently codified as 50 U.S.C. §1861); (2) the “roving wiretap” provision (also known as Section 206 of the USA Patriot Act of 2001 or FISA Section 105(c)(2)(B) and presently codified as 50 U.S.C. §1805(c)(2)(B)); and (3) the “lone wolf” amendment to the FISA definition of “agent of a foreign power” (added by Section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004 and presently codified as FISA Section 101(b)(1)(C), or simply 50 U.S.C. §1801(b)(1)(C)).

Mr. Croner argues, as do many of our friends presently or formerly in the intelligence community, that these authorities are important and should be renewed. (There’s a good analysis of the scenarios if they are not renewed in this article by Bobby Chesney, the Charles I. Francis Professor in Law and Associate Dean for Academic Affairs at the University of Texas School of Law.)

We respect that view, but are of the opinion that Congress should not renew these provisions of FISA unless and until the FBI, the Justice Department and the intelligence services provide answers to the questions that remain about how FISA and its authorities were abused during the Obama years to spy on the Trump campaign and to spy on and “unmask” American citizens.

And this is not some wild conspiracy theory. The heavily redacted documents released in the Carter Page lawsuit confirm the charges of abuse laid out early this year by House Permanent Select Committee on Intelligence (HPSCI) Chair Devin Nunes (CA-22).

As law professor Margot Cleveland explained in an article for The Federalist, the documents also provide additional evidence that the Obama administration’s Department of Justice and career DOJ, Federal Bureau of Investigation, and State Department employees misused the FISA court system to spy on the Trump campaign.

Just to make Prof. Cleveland’s point clear: The Carter Page document dump shows that the FISA abuse during the Obama years wasn’t conducted by a couple of rogue FBI agents, as one might be led to believe based on the media focus on McCabe and Strzok, a lot of people across a number of government agencies were in on it.

Who those people are and who directed them remains unclear to this day, at least to those of us outside the HPSCI SCIF.

The Carter Page document dump also made clear that the FISA warrants were issued on the basis of a circular proof cycle (self-licking ice cream cone as our friend Tom Fitton of Judicial Watch once termed it) in which news articles and leaks from the phony Steele dossier planted by the conspirators were then used as evidence the dossier was factual thereby justifying the spying on the Trump campaign and various Americans, including Carter Page.

Once again, who conceived, directed and implemented this abuse of FISA authority has never been adequately plumbed.

Those points, and many others, go to the questions our friend Senator Rand Paul raised in an appearance on ABC's "This Week" (transcript courtesy of Susan Jones of CNS News posted on May 13, 2019.)

"The primary underlying constitutional issue here is whether or not the FISA court, which is supposed to spy on foreigners -- which has a lower constitutional standard -- can you use the FISA court to spy on a presidential campaign? Can you use the FISA court to seek information about Americans?

"…it's important to remember that this was politically motivated from the very beginning from a political document, from the Hillary Clinton campaign, and that should be investigated because we cannot allow the incumbent parties to weaponize the intelligence communities to spy on Americans or on political candidates or potentially their donors.

"That truly is a travesty and truly is unconstitutional, and that's the root of the problem we should be addressing," concluded Senator Paul.

The extraordinary power FISA grants the government to use technology to spy presupposes that those who have access to that power also have an unwavering fidelity to the Constitution. What is known so far about the Trump – Russia hoax perpetrated by the Obama administration reveals just a few hints of how bad it could be when the power-hungry have unfettered access to that power and technology.

We urge CHQ readers and friends to call the Representative and Senators (the toll-free Capitol Switchboard is 1-866-220-0044), tell your Representative and Senators that no provision of FISA should be renewed until the public has answers to the questions about how FISA was used to spy on Donald Trump and who in the Obama administration directed and implemented the abusive anti-constitutional spying on the Trump campaign and those associated with it.

George Rasley is editor of Richard Viguerie's and is a veteran of over 300 political campaigns. A member of American MENSA, he served on the staff of Vice President Dan Quayle, as Director of Policy and Communication for former Congressman Adam Putnam (FL-12) then Vice Chairman of the Oversight and Government Reform Committee's Subcommittee on National Security and Foreign Affairs, and as spokesman for Rep. Mac Thornberry former Chairman of the House Armed Services Committee. As a member of Mr. Putnam's staff he worked on the USA Patriot Act of 2001.

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