Abuse of Power and the FISA Court – What you need to know


Prof. William Wagner

WFFC Distinguished Chair for Faith & Freedom at SAU

Whoever walks in integrity walks securely, but whoever takes crooked paths will be found out. Proverbs 10:9

Abuse of Power in our Justice and National Security Institutions

Compelling evidence shows the Clinton campaign and the DNC unlawfully colluded with the Obama administration. Together they secretly weaponized our justice and national security institutions, not for national security, but for political purposes. Not only did they try to steal a presidential election, they attempted to undercut the validity of its result, and politically assassinate a duly elected, sitting president.

Those who oppose the current administration opposed release of this evidence. They contended that letting the public see it would dangerously undermine our national security.  Counterintuitively, they later published their own response, suggesting that the evidence released to the public misleadingly failed to tell the whole story. If the latter is the case, then the government should release all the evidence.  Let us, the American people, see all the good, the bad, and the ugly. And then let us decide. Let us not though be distracted from the truth as to the evidence released so far. It is credible, and accurate.

We begin by looking at the FISA Court and its important function. We then look at what happened to create the current crisis.

The Foreign Intelligence Surveillance Court

Congress enacted the Foreign Intelligence Surveillance Act (FISA). In this statute Congress authorized the Foreign Intelligence Surveillance Court.  Under the law the Chief Justice of the Supreme Court designates eleven U.S. District Court Judges to serve as judges on the FISA court. According to the court’s website, these judges normally rotate, sitting for a week at a time.

Secret Nature of the FISA Court

The Foreign Intelligence Surveillance Court plays an integral role in protecting American citizens from foreign threats. Because of its special role, and the classified nature of the matters before it, the activity of the court is highly secret. Generally, only government authorities present their side. Usually someone from the FBI or NSA applies for a surveillance order or other investigative action. In making the application the government must present evidence to the  judge in support of its application.

Duty of Candor at the FISA Court

The ex parte, one-sided nature of the application creates a special duty of candor. For example, under the court’s rules, the applicant must correct any misstatement.  Moreover, under these same rules, the government holds a duty to disclose non-compliance with the court’s order.

What Happened?

On October 21, 2016, the Federal Bureau of Investigation and Department of Justice applied for a surveillance order from a FISA Court judge. To support its application, the Obama Administration, under the guise of evidence, submitted opposition research paid for by the DNC and Clinton campaign. The colluding government authorities did not disclose that the “evidence” was opposition research bought and paid for by the DNC and the Clinton Campaign.

The judge, based upon the “evidence” submitted, authorized secret surveillance of the Trump campaign personnel.  Government authorities obtained permission to secretly continue the order, even after the election and inauguration of the new President. According to the summary of the evidence release by the government: “Neither the initial application in October 2016, nor any of the renewals, disclose or reference the role of the DNC [or the] Clinton campaign,” even though DOJ and FBI authorities knew about it.

Just as problematic, the source who provided the “evidence” resulting in the surveillance order, also improperly shared this information with press. After the government terminated him as a source due to his unauthorized disclosures, he continued to meet with high level government authorities in the Department of Justice.

On these pages we chase neither the donkey nor the elephant. We chase the truth. This is not about bad Democrats or good Republicans.  It is about the abuse of power. Abuse enabled by a secret process designed, (when properly used), to protect national security and preserve individual liberty.  This is not the first time government officials faced scrutiny in connection with their use of the Foreign Intelligence Surveillance Act. Activities by past administrations, including those controlled by the GOP, raised many questions.

The Threat to Good Governance under the Rule of Law

Diminishment of institutional integrity leads to a decline in institutional legitimacy. The institutions at the center of the crisis here are the those upon which we rely to  pursue truth and justice, without fear of favor to any political party.

Thus, we trust the FBI and NSA to protect us from domestic and foreign threats. FISA Court Judges rely upon these authorities to truthfully support their applications for surveillance with reliable, credible evidence.

A presidential campaign, a major political party, and some government officials, all have a lot to explain. And so will others who attempt to diminish or distract from the very real culpability here. Their abuse of power undermines the legitimacy of our justice institutions. Institutions we trust with our liberty and our security. Institutions where the public’s trust is crucial for a nation governed under the rule of law.

Restoring Legitimacy Requires Accountability

It is especially important to restore legitimacy to the Federal Judiciary. Why? Because the Judiciary’s only source of real power is the public’s trust. The legitimacy that we the people give it to carry out its important constitutional role.  We follow court orders because, and only because, we trust the legitimacy of the process that led to the issuing of order.  Here individuals connected the Clinton campaign, the DNC, and government undermined that process.

To restore legitimacy in our justice and national security institutions, we must hold the culpable individuals accountable. Will a special counsel be appointed to investigate and prosecute criminal action?  If not, why not?  If the process involved lawyers, the lack of candor to the court begs the question whether the Department of Justice Office of Professional Responsibility,  opened an inquiry. The Rule of Law demands that we rise above politics, even when those culpable hold political clout.



About the Author

Prof. William Wagner
WFFC Distinguished Chair for Faith & Freedom at SAU
Professor Wagner holds the WFFC Distinguished Chair for Faith & Freedom at Spring Arbor University. He has a special interest in building and preserving environments where Christians may share the Good News of Jesus, free from persecution and oppression.

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