Thanks to the release of the heavily redacted application to conduct surveillance on former Trump campaign official Carter Page, the American People have a rare look into the review process of FISC. The Foreign Intelligence Surveillance Court, or FISC, is the secret court that must approve any covert surveillance operations of US intelligence agencies that involve US citizens. FISC is supposed to operate in accordance with the Foreign Intelligence Surveillance Act, or FISA, but there is little transparency and accountable for this secret court. While informing targets of the government’s intent to spy on them would defeat the purpose of any surveillance, FISA does not even provide targets with a FISC advocate, who could object to questionable arguments asserted by the government. Efforts like the 2014 USA Freedom Act have attempted to address national security overreach, yet such reforms have done little to prevent the issuance of questionable warrants nor ease concerns that FISC is little more than a rubber stamp.
As part of a political effort by the Trump Administration and Congressional Republicans to frame the investigation into Russian efforts to interfere in the 2016 Presidential Election and alleged collusion with the Trump campaign as nothing more than a politically motivated “witch hunt,” the release of the 400 plus page document was destined to be politicized. Much like the release of the so-called Nunes Memo months earlier, Republicans have seized upon key sections of the warrant request then automatically concluded the FBI violated Page’s civil liberties by acting on politically biased heresy instead of credible intelligence. Donald Trump, of course, has proclaimed the entire investigation into Russian election hacking and collusion with his campaign null and void. Many others have, of course, refuted the pro-Trump conclusion. If an advocate had been part of the FISC proceeding for Carter, “due process” would have been served and this specific debate would not need to take place in pubic nor would the ensuing conspiracy theories be able to distract from the broader issues. At the very least, the FBI could more readily disarm critics of its investigation.
With that in mind, the FISA warrant application does nothing to discredit the investigation into Russian attempts to hack the 2016 US Presidential Election. The surveillance of Carter was, after all, only an attempt to explore one aspect of how the Russians were attempting to influence both the 2016 Presidential Election and the Trump Administration. The investigation had begun long before Page survelliance. Although it is true the FBI relied heavily upon the so-called Steele Dossier, which was paid for by Democrats and was compiled by someone who despised Donald Trump to paint Trump in a negative light, to legally justice its surveillance of Trump officials, Page and other Trump campaign staff member had been regularly linked to Russian contacts. These meetings, of course, took place in the context of the Ukraine Crisis, which was the driving force behind heavy US Sanctions against Russia. Moscow obviously wanted a US President more favorable to Russian interest than President Obama’s Secretary of State while Putin wanted access to the next US President in order to facilitate the lifting of sanctions. Not only does not Russia have a history of interfering in foreign elections and politics, even after the Cold War, the Kremlin-sponsored Internet Research Agency was already being investigated for its political activities.
To the common observer, it is obvious the Putin government had a clear motive to gain favor with the next US President. It is also obvious that the Putin government had a clear modus operandi in terms of election hacking. Witnessing members of the Trump campaign reach out to Russian contacts and Donald Trump himself making overtures to the Russian government for help to win the 2016 Presidential Election, most people would have to conclude probable cause existed in the case of Carter Page. The problem is that the FBI included a very weak and indirect legal argument to obtain the FISA warrant, which FISC issued and reissued several times. When people look at the legal system, they like to think law enforcement, prosecutors, and judges approach legal matters the same way scientists approach scientific inquiry. They use inductive reasoning to induce a potential conclusion from evidence they have. Once they gather enough evidence, they then engage in deductive reasoning to deduct unbiased, well-supported conclusions. In theory, the legal system should work this way, but it does not in practice.
Like all people, legal professionals derive most of their conclusions from abductive reasoning, not the deductive reasoning used by objective scientists to solidly justify their findings. Abductive reasoning is the process by which people make an observation then seek to find the simplest and most likely explanation based on their preconceived notions and past experiences. It is how most people function on a day to day basis. It is why pro-Trump supporters are so quick to seize upon the Carter Page warrant application and automatically invalidate the rest of the Russian investigation. Regrettably, it also is why law enforcement, prosecutors, judges, and juries so frequently accept weakly structured and supported arguments instead of pushing for judgments that actually go beyond a reasonable doubt. In most courts, the pitfalls of abductive reasoning are somewhat overcome by empowering the accused to confront accusers, question evidence, and counter arguments. They also tend to include juries, which add alternative perspectives. While Carter Page may or may not have been a validate FBI target, it is clear FISA still needs reforms, including provisions to ensure advocates on FISC.
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