Federal Judge Blows the Cover off Secret FISA Court

The Foreign Intelligence Surveillance Acr of 1978, enacted during the Carter administration, prescribes procedures for requesting judicial authorization for electronic surveillance and physical search of persons engaged in espionage or international terrorism against the United States on behalf of a foreign power. FISA establishes the Foreign Intelligence Surveillance Court of 11 district judges chosen by the Chief Justice of the U.S. Supreme Court.

As Ryan Lucas of National Public Radio notes, the FISA court is “cloaked in mystery” and “operates completely out of sight,” that is, in secret. As Department of Justice Inspector General Michael Horowitz revealed in 2019, the FBI failed to ensure that the application to surveil American citizen Carter Page was scrupulously accurate. In fact, FBI lawyer Kevin Clinesmith had falsified a document to say that Page was not a CIA asset when in fact he was. 

For this federal crime, Clinesmith faced a maximum sentence of five years in prison and a fine of $250,000. On January 29, Clinesmith got only 12 months probation, a $100 fine and 400 hours of community service. Instead of a lecture about how Clinesmith had betrayed the FBI, DOJ, and the law he swore to uphold, the judge opted for leniency because the FBI man had already suffered by losing his job and “standing in the eye of a media hurricane.” 

That was federal district judge James Boasberg, since 2014 the presiding judge of United States Foreign Intelligence Surveillance Court. The judge thus delivers a tap on the wrist for criminal deception of the very court over which he presides. The victim, Carter Page, once worked on Donald Trump’s 2016 electoral campaign, but this is no partisan issue. Judge Boasberg sends the message that the FBI may deceive the FISA court, and if they should get caught, receive the lightest possible punishment. That is bad news for all citizens going forward. 

As journalist Glenn Greenwald warns, the new domestic war on terror is driven by a radical expansion of the meaning of “incitement to violence,” pleas “that one work with the FBI to turn in one’s fellow citizens,” and “demands for a new system of domestic surveillance.” The FISA court, which operates “completely out of sight,” could well be part of it.

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