Why Did The FISA Court Okay All This Wiretapping? A Lawsplainer!

Have we mentioned lately that Paul Manafort's been a very bad boy? Because he has. And yesterday CNN revealed that he was the subject of lengthy surveillance under orders approved by a FISA court both before and after the 2016 presidential campaign and election. (In fact, both before Donald Trump started running for president and chose Manafort as his campaign chairman, and after Trump took office!) So let's take a hot second here and Lawsplore just what even IS a FISA, since this looks to be A THING going forward.

After J. Edgard Hoover died in 1972 and Nixon resigned in 1974, Democrats finally got control of Congress and they decided law enforcement needed to dial back all the spying on hippies, The Blacks, The Gheys, political enemies, anti-war protesters, and The Feminists. But they still wanted to keep the country safe from scary furriners what have funny names and smell like garlic. So in 1978, Congress passed the Foreign Intelligence Surveillance Act, authorizing the president to collect electronic information on not-Americans to protect the country from attack or sabotage.

So far, so foreign. But sometimes when you're a Law Man listening in to an overseas bad guy, an American comes on the line. In law talk, you have an incidental collection of a U.S. Person (USPERS). And you, Mr. Law Man, can't just use this information willy nilly. You have to hide (aka minimize) the name of the U.S. person, and you have to dump his half of the conversation within 72 hours if there's no evidence of a crime. If, however, it's Paul Manafort talking to Viktor the Ukrainian Oligarch about getting dirty money wired to him in Cypress Cyprus(!!), you can hold on to that info and use it for a criminal prosecution. IF!

FUN FACT: Republicans screaming bloody murder that Obama spied on them are full of crap. Yeah, no shit Uncle Sam was listening in to your conversation with the Russian ambassador, RAND! That's what he's supposed to do!

But we digress!

Sometimes, you have a U.S. Person who acts like a non-U.S. Person. He might, just for example, take money from Turkey and then write editorials saying that the United State should deport cleric Fethullah Gülen a law-abiding resident of Pennsylvania, because he makes the Turkish government cry sad tears. And that U.S. Person might also have been trying to have that nice law-abiding resident of Pennsylvania KIDNAPPED! That person would be a Foreign Agent under the Foreign Intelligence Surveillance Act. (And he would be Michael Flynn!)

(A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;

(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;

In that case, the government will undertake a threat assessment and gather evidence to present to the FISA Court, a rotating panel of 11 federal judges. If the Court agrees that the target poses a threat to the United States or is acting on behalf of a foreign government, it will issue a warrant that must be renewed every 90 days. Three months later, the prosecutor has to schlep back in there and prove that she gained foreign intelligence under the wiretap, and the court will renew it.

So, how guilty is Paul Manafort? The CNN article reports that the FISA court approved a wiretap between 2014 and early 2016 (at least 5 renewals), relating to "work done by a group of Washington consulting firms for Ukraine's former ruling party.” That warrant lapsed, and a second one was issued later in 2016 regarding “ties between Trump campaign associates and suspected Russian operatives.” Here, let former prosecutor Asha Rangappa break it down for you.

That's a lot of eavesdropping! And at a time when Manafort was in contact with Trump, Pence, Flynn, Kushner, and the entire Trumpland Goon Squad. We can't tell you what Johnny Law overheard during all those months - at least until it is BREAKING SCOOP O'CLOCK again. But we speculate that something's going to give since everyone in Trumpworld knows that the FBI and Robert Mueller have a record of all their communications. Things change when you realize you can't lie anymore about what you said last year to that nice Russian hacker, if you know what we mean.


[CNN / Just Security]

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Liz Dye

Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.


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