Conservative catfight over section 702 of FISA

The fight over renewing section 702 of FISA has highlighted a split among conservatives. Former Rep. Bob Goodlatte and Matthew Silver have attacked me and Michael Ellis by name over the issue in recent op-eds.

The issue is whether conservatives should join the left in demanding court orders based on probable cause before the FBI can search for data about Americans in a collection of 702 data that has already been gathered lawfully.

Goodlatte & Silver say yes; Ellis & Baker say no.

Here's the Goodlatte/Silver view. And here's our response, hot off the presses.

We've also offered to debate them in a match refereed by the Federalist Society. Buy your popcorn early!

Comments

[SundanceInGlentucky]

I get a page not found error on the Goodlatte/Silver link.

[The Margrave of Azilia]

I thought conservative fights were dog-eat-dog.

[Magister]

A catfight is more commonly between women. Fights within one political leaning are generally circular firing squads. Fights between different political leanings are generally days ending with "Y", or sometimes dolchstosslegende for conservatives on the losing side.

The article the Goodlatte/Silver link is intended to reach appears to be:
https://www.realclearpolitics.com/articles/2023/09/12/government_surveillance_reform_is_a_conservative_priority_149743.html

Direct link to their response:
https://www.realclearpolitics.com/articles/2023/09/20/the_lefts_fisa_reform_trap_149776.html

[Stewart Baker]

Many thanks for supplying the proper links. The post should be fixed now.

[Magister]

Kudos or sympathy for your willingness to visit the comments here. 🙂

[Kazinski]

I can see the need for legitimate law enforcement to access the 702 database in exigent circumstances.

But the FBI really?

They don’t meet my definition of legitimate law enforcement.

[jjsaz]

Just exactly where in the Constitution did you find the exigent circumstances exception to the Fourth Amendment? Just because an authoritarian SCOTUS decided to invent one out of whole cloth (as well as the National Security Exception) doesn't mean there should be any such excrptions.

[Randal]

"due"

[Sarcastr0]

'unreasonable' is where I believe they hang a ton of doctrine.

[jjsaz]

Too true, but the words used by Madison when he introduced the 4th were, “The rights of the people to be secured in their persons; their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.” 1 Annals of Congress (June 8, 1789). https://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=227

It got modified somewhat in verbiage as adopted, but the intent was that all warrsntless searches were unreasonable and that warrants that we're not supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized we're just as unreasonable.

[David Nieporent]

the intent was that all warrsntless searches were unreasonable

[Citation needed.]

[Noscitur a sociis]

It got modified somewhat in verbiage as adopted, but the intent was that all warrsntless searches were unreasonable

If that was the intent, why didn't they say it, either in the quote you provide or the actual text of the amendment that was adopted?

[Longtobefree]

That exception is next to the one about the second amendment not really meaning "shall not be infringed". I directly follows the part allowing federal agencies to issue edicts, and to exist without constitutional authority.

[Sarcastr0]

[FBI didn't] meet my definition of legitimate law enforcement.

When partisanship takes over your brain.

[Kazinski]

I'm not exactly a fan of the Black Panthers, but they can tell you a few things about the FBI you might not know.

The FBI crime lac scandal hardly seems partisan too:
https://archive.nytimes.com/www.nytimes.com/books/first/k/kelly-evidence.html?scp=10&sq=Ultraviolet&st=Search

This however does seem partisan:
FBI lost count of how many paid informants were at Capitol on Jan. 6, and later performed audit to figure out exact number: ex-official
https://nypost.com/2023/09/19/fbi-lost-count-of-number-of-informants-at-capitol-on-jan-6-ex-official/

According to Capitol Hill police chief Sund, the FBI had at least 18 assets at the capitol that day, and that doesn't count others in Homeland Security, ATF et cetera.

[Commenter_XY]

I used to admire and respect the FBI. Now, with all the revelations of the last 7 years, I have contempt for the organization. Downsize it dramatically.

[Nige]

‘I used to be a law and order Republican but since Trump I’ve developed sympathies with the Black Panthers.’

[Randal]

Those on the left aren’t likely to support a ban on government monitoring of domestic “disinformation,” more accountability for partisan abusers of FISA like the Carter Page scandal and the Flynn transcript leaker, a repeal of the prong of FISA used to target Page, or measures to stop former intelligence officials from trading on their credentials for partisan purposes.

Let's enumerate.

a ban on government monitoring of domestic “disinformation" - Assuming you're talking about monitoring public sources, of course the left won't go along with that. Why would we ban the government from looking at public sites? That's just dumb.

more accountability for partisan abusers of FISA like the Carter Page scandal - I don't know what this means. How do you propose to hold a scandal accountable?

more accountability for partisan abusers of FISA like ... the Flynn transcript leaker - I don't see why the left would object to that. We're quite fond of accountability.

a repeal of the prong of FISA used to target Page - You seem to underestimate the left's disdain for FISA. Please, repeal any or all of its prongs!

measures to stop former intelligence officials from trading on their credentials for partisan purposes - Why do you think the left wants former intelligence officials to be trading on their credentials for any purposes? We despise the revolving door in all its forms. Let's have measures to stop former government officials of any kind from trading on their credentials for any reason. Once you leave government you get a pension and a little house in rural McNowhereland to live out your life influence-free, just like how Russia does it.

[damikesc]

"more accountability for partisan abusers of FISA like the Carter Page scandal – I don’t know what this means. How do you propose to hold a scandal accountable?"

You know, you could LOOK up what the scandal was about.

As a hint: The FBI intentionally lied in their requests for FISA warrants, repeatedly, to spy on Carter Page. One person got "punished" and he, in fact, was not actually punished whatsoever.

[Nige]

I doubt anyone on the left would object to stronger sentencing guidelines for that sort of thing, but it's not really about that, is it?

[damikesc]

"I doubt anyone on the left would object to stronger sentencing guidelines for that sort of thing, but it’s not really about that, is it?"

They have never supported it before, so I must wonder where your belief comes from here.

[David Nieporent]

As a hint: The FBI intentionally lied in their requests for FISA warrants, repeatedly, to spy on Carter Page. One person got “punished” and he, in fact, was not actually punished whatsoever.

As a hint: "one person" at the FBI, not "the FBI," "intentionally lied," once, not repeatedly. That one person was fired and prosecuted.

[damikesc]

I love this whole "it was just ONE bad apple" bullshit. Always amusing.

[Randal]

Hence my original question about not understanding how you intend to hold a "scandal" responsible. What, concretely, is your proposal?

[Toranth]

And of course, Clinesmith would have never done anything wrong before. It was just that, this time, Carter Page, a known and trusted CIA source, was so evil and criminal that Clinesmith couldn't help but step over the line to forge a little evidence. He certainly wouldn't have done it against someone else, like a drug dealer or suspected terrorist! But someone working for a political opponent's campaign was just too much.

And if someone had read the IG's report, they'd know that the FBI repeatedly made materially false statements on at least two warrant applications against Page (in addition to numerous factually incorrect claims on all four applications). It wasn't just "one person" or just "once" as the ignorant might claim.

[iowatwo]

The FISA warrant was renewed 3 times.
The Legal requirement for renewal calls for the warrants are successful in gathering facts and making progress on the criminal investigation.

Thats lots of lies by lots of people signing off on lots things not true

[damikesc]

"I don’t see why the left would object to that. We’re quite fond of accountability."

...in what country is this the case? Certainly no Western country. Nor Asian. Nor African, really.

[damikesc]

"Why do you think the left wants former intelligence officials to be trading on their credentials for any purposes?"

The "Hunter Biden laptop is Russian disinfo" letter says hello. As do multiple casdes of lying under oath to Congress AND getting re-hired by Biden ANYWAYS.

"We despise the revolving door in all its forms."

Claim made sans any semblance of evidence.

[Nige]

'The “Hunter Biden laptop is Russian disinfo” letter says hello.'

You do know the only people to whom that letter (which you have mischaracterised) holds any special significance is right-wingers still mad that their ratfuck misfired.

[damikesc]

You have an odd way of saying "100% accurate information".

And the media, Joe, and the intel agencies (all of whom should be shut down and put under total control of the executive with zero independent control over themselves. We have decades of them being unable to govern themselves adequately) sure found it vital to generate that letter ASAP.

Also had to have social media shut down the story.

Because that is normal behavior for 100% accurate information.

...and you SUPPORT this. That is the funny part. You are a bootlicker of the highest order.

[Randal]

https://prospect.org/politics/congressman-grijalva-lays-down-marker-revolving-door-lobbyists-executive-branch/

[jjsaz]

They are correct. You are not. The data shoukdn’t be collected in the first place. Using it without warrants is despicable.

[Roger S]

With Google, Facebook, and lots of other companies collecting a lot of data about me, I cannot get excited about this obscure 702 database. Who cares? Who has ever been bothered by this?

[Davy C]

"Gathered lawfully"... under laws which allow for the collection of information about foreigners using means which are not *ordinarily* lawful. Seems really sketchy to be searching that for information about US citizens.

[Ken Arromdee]

The Ellis/Baker link is misleading. “And the section 702 data that the FBI is allowed to search today was gathered lawfully; it consists of communications to and from fewer than 8,000 foreign targets”. If you read the Goodlatte/Silver article, you’ll notice that 8000 foreigners means *millions* of Americans.

And it was gathered lawfully under the pretense that it was being done to spy on the foreigners in the first place, and that any Americans caught up in it are incidental. That’s supposedly why warrants weren’t initially required. The FBI is trying to have it both ways; warrants aren’t initially needed because it doesn’t involve a lot of Americans, but now that that part is a done deal, it doesn’t matter how many Americans are involved because it was “lawful” (under an assumption that’s no longer true).

Any sane interpretation of the laws should say "it was lawful in the first place only because it chiefly applies to foreigners. If you're mainly using the information to catch Americans, then it wasn't lawful in the first place because its lawfulness was based on a lie."

[damikesc]

The FBI --- every single person involved in any of this --- should be brought up on wholesale violations of the right to privacy for all Americans. They have zero credibility on the issue and we know what they have done.