i'll get to your above post, but i'm mid posting atm. this is all that's needed to get the FISA warrant. the bolded "conclusion" is further pointing that things are expected to be presented "as true". (again, they were not)
https://fas.org/irp/agency/doj/fisa/sojudge.pdfQuote
How Does One Obtain a FISA Court Order?
Obtaining a court order which approves electronic surveil-lance or physical searches for counterintelligence purposesunder the FISA is primarily a legal task. This is an extraordi-narily complex area of practice involving cases with potentiallyexplosive media coverage and damage to national security.Managing a national security case is a task that no one personor agency handles alone. When determining who to call, andthroughout the development of the case, judge advocates mustremember that only intelligence entities can conduct counterin-telligence operations. Within the Army, intelligence entitiesinclude division and corps military intelligence (MI) assets, aswell as the six regionally-oriented MI brigades or groups thatare part of United States Army Intelligence and Security Com-mand (INSCOM). The Army Criminal Investigation Com-mand has no role in conducting counterintelligence operations,including the use of electronic surveillance.70 The intelligenceagency that will commonly assist in electronic surveillanceefforts, and the one that is the lead agency for all counterintel-ligence activities within the United States,71 is the FBI.The following is a recommended procedure for handling thehypothetical case described in the beginning of this article:Step 1: Touch the Required Coordination NodesThe installation must advise the FBI immediately of “anyinformation, regardless of its origin, which indicates that clas-sified information is being, or may have been, disclosed in anunauthorized manner to a foreign power or an agent of a foreignpower.”72 Following the initial report to the FBI, the statuterequires consultation “with respect to all subsequent actions”which are taken to determine the source or extent of the loss ofclassified information.73Even without specific information indicating a possiblecompromise of classified information to a foreign power, if thesuspect is an employee or former employee of an Army intelli-gence component, the installation may be required to report theconduct to the Army General Counsel or Inspector General,who will in turn coordinate with the DOJ.74 The 1995 Report-ing of Crimes Memorandum outlines a detailed reportingmechanism and provides a detailed list of offenses which mustbe reported, even if the information pertains to non-employees.Finally, DOD policy requires the installation to report expedi-tiously “significant counterintelligence activities, criminalcases, and espionage activities.”75 In the context of nationalsecurity cases, the reporting requirement applies to counterin-telligence activities that are likely to receive publicity or toinvolve conduct which is or may constitute criminal espio-nage.7668. The FISA applies to both electronic surveillance and physical searches for foreign intelligence purposes.69. The Attorney General may elect, however, to seek FISC approval for the use of electronic surveillance within the United States involving non-U.S. persons.70. The Army Criminal Investigation Command (CIDC) is not a DOD intelligence component. AR 381-10, supra note 42, at A1-2. This differs from both the Navyand Air Force, as their investigative services each possess counterintelligence elements. In certain circumstances, Army intelligence components must provide detailsof intelligence investigations to the CIDC. U.S. DEP’TOF ARMY, REG. 381-20, U.S. ARMY COUNTERINTELLIGENCE (CI) ACTIVITIES (15 Nov. 1993) [hereinafter AR 381-20]. In the process of seeking a FISA court order for electronic surveillance, however, judge advocates should not contact either the CIDC or the local Provost Marshal.Telephone Interview with Edward G. Allen, Command Counsel, U.S. Army Foreign Intelligence Command/902D MI Group (Dec. 11, 1996) [hereinafter Allen Inter-view] (notes on file with authors).71. EO 12,333, supra note 3, para. 1.14(a).72. Intelligence Authorization Act for Fiscal Year 1995, Pub. L. No. 103-359, § 811, 108 Stat. 3455, codified at 50 U.S.C.A. § 402a (West 1996).73. Id. If further investigation reveals that the suspect did not disclose the classified information to a foreign power but did improperly remove the classified infor-mation from the authorized storage area, the trial counsel should refer to 18 U.S.C.A. § 1924 (West 1996), which imposes a fine of up to $1,000 or one year impris-onment for removal with the intent to “retain such documents or materials at an unauthorized location.”74. EO 12,333, supra note 3, § 1.7(a); 1995 CRIMES REPORTING MEMORANDUMOF UNDERSTANDING BETWEENTHE DEPARTMENTOF DEFENSEANDTHE DEPARTMENTOF JUSTICE(8 Sept. 1995) (copy on file with authors). See also 28 U.S.C.A. § 535(b) (West 1996) (requiring agencies to report violations of federal criminal laws to the AttorneyGeneral whether or not the offender is employed by an intelligence component).75. U.S. DEP’TOF DEFENSE, INSTR. 5240.04, REPORTINGOF COUNTERINTELLIGENCEAND CRIMINAL VIOLATIONS (22 Sept. 1992) (describing reportable items and outliningrequired reporting channels through the DOD Inspector General).76. Id. para. C. The judge advocate must prepare a report describing the nature of the offense, a summary of the facts, identification of the persons involved, and abrief summary of actions taken. Id. In addition, cases involving counterintelligence or espionage should include a statement of the nature and sensitivity of the infor-mation involved. Id. para. G(5).
OCTOBER 1997 THE ARMY LAWYER • DA PAM 27-50-29934Step 2: Determine if the FBI has the Investigative LeadAfter the 1995 Reporting of Crimes Memorandum, Con-gress passed the Antiterrorism and Effective Death Penalty Actof 1996.77 The statute made it a crime to commit acts of terror-ism which transcend national boundaries. The statute also gavethe Attorney General “primary investigative responsibility forall federal crimes of terrorism,” 78 which are defined as offenses“calculated to influence or [to] affect the conduct of govern-ment by intimidation or coercion, or to retaliate against govern-ment conduct”79 and which involve violations of any of thefederal criminal laws that are listed in the statute.80The hypothetical case at the beginning of this article doesnot appear to involve any of the offenses specified in the stat-ute; therefore, the military would retain the lead. The FBIwould assume the lead investigative responsibility for theinvestigation if later information links the suspect employee toone or more of the listed offenses (such as providing aviationinformation to assist terrorist groups).Step 3: Define the “Primary Purpose” of the InvestigationAt the onset of an investigation, judge advocates who seekwarrants under the FISA must inform the SJA of the majorcommand about the situation.81 The technical channel coordi-nation will pave the way for eventual coordination through theappropriate General Counsel offices, but the required coordina-tion with the SJA may prove to be beneficial in many ways.Next, judge advocates should contact the MI Group fieldoffice that is responsible for the unit or activity in which thesuspected person works.82 The MI field office will in turn relayall necessary information, including the request for the use ofelectronic surveillance, through company and battalion levelsto the MI Group.83 At this level, Army counterintelligenceplanning occurs.The critical stage of the initiation and development of theinvestigation involves the clear and prompt determination of itsprimary purpose. As former Attorney General Griffin Bellstated, “every one of these counterintelligence investigations. . . involves crime in an incidental way. You never know whenyou might turn up with something you might want to prose-cute.”84 From the beginning, the investigators must determinewhether the investigation is primarily an intelligence effort,which will be coordinated and conducted by counterintelli-gence agents, or a law enforcement investigation.To assist in the primary purpose determination, the SJAshould appoint an intelligence oversight officer85 to serve in aquasi-judicial role as an impartial mediator between competingorganizational interests. At the installation level, the intelli-gence oversight officer should convene a counterintelligencecoordination meeting between the appropriate unit command-ers, the local MI assets, and the Criminal Investigation Divisionrepresentatives. It is vital for the intelligence oversight officerto include the commander in the meeting. The commander willbe the one deciding how to dispose of any future criminalcharges, and he is able to provide input concerning the impor-tance of immediate prosecution of the case. In addition, thecommander should be involved at this stage because the devel-opment of the case as an intelligence investigation will almostcertainly mean that the suspect will continue to have access toclassified information, which has implications for the unit’ssecurity.In addition to serving as a convenient local forum for theexchange of information, the counterintelligence coordinationmeeting has several purposes. First, the intelligence oversightofficer can use the meeting to collect information which willthen be relayed to the Army Central Control Office. Prior to77. Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996).78. Id. § 702, codified at 18 U.S.C.A. § 2332b (West 1996).79. 18 U.S.C.A. § 2332b(g)(5)(A).80. Judge advocates should refer to the extensive list of offenses in the statute. The list includes many offenses that could conceivably be committed in areas undermilitary control, such as: 18 U.S.C.A. §§ 32 (relating to destruction of aircraft or aircraft facilities; 81 (relating to arson within special maritime and territorial juris-diction); 175 (relating to biological weapons); 842(m), (n) (relating to plastic explosives); 844(e) (relating to certain bombings); 1361 (relating to inury of governmentproperty or contracts); 1362 (relating to destruction of communication lines, stations, or systems); 1363 (relating to injury to buildings or property within special mar-itime and territorial jurisdiction of the United States); 1992, 2152 (relating to injury of fortifications, harbor defenses, or defensive sea areas); and 2155 (relating todestruction of national defense materials, premises, or utilities).81. Office of The Judge Advocate General, U.S. Army, Policy Letter 97-4, UseoftheTechnicalChannelofCommunications (17 Sept. 1996).82. In situations where the MI field office is unknown, the judge advocate can call the legal advisor for the regional MI group. The MI group legal advisor will informall subordinate MI activities. Allen Interview, supra note 70.83. Id.84. United States v. Truong Dinh Hung, 629 F.2d 908, 916 n.5 (4th Cir. 1980).85. The chief of the SJA’s administrative law office would be a good choice to serve in this capacity.
OCTOBER 1997 THE ARMY LAWYER • DA-PAM 27-50-29935formally opening an intelligence investigation, the controloffice must determine that the offense and personnel believedto be involved are within the Army investigative jurisdiction.86Second, the participants should determine the offenses whichmay be involved in the incident. The list of possible offenseswill help determine the primary purpose of the investigation.87Even though some of the alleged conduct might be identifiedas criminal, the intelligence interests of exploitation, damageassessment, development of an association matrix, or surveil-lance of foreign intelligence assets might indicate that theprimary purpose for the investigation should be counterintelli-gence. Conversely, if the early stages of investigation elimi-nated the involvement of a foreign power, a primary purpose oflaw enforcement is logical and would require law enforcementassets and procedures. In either instance, the intelligence over-sight officer should document the rational for the determinationof the investigation’s primary purpose.The involvement of the intelligence oversight officer duringthe early stages can prevent future problems in the resolution ofthe case. If the case results in a court-martial which will requirethe use of evidence derived from FISA warrants, the trial judgewill delay the trial pending a federal district court’s determina-tion of the legality of the FISA procedure.88 Rather than forcingthe trial counsel to testify, the intelligence oversight officer willbe available to testify to the federal district court if necessary.In addition, insulating the trial counsel from the determinationof the investigation’s primary purpose helps eliminate any pros-ecutorial taint which might endanger subsequent judicialreview of the foreign intelligence information sought under theFISA.In the hypothetical case at the beginning of this article, as inall domestic instances, the MI Group will apprise the FBI of thedeveloping counterintelligence situation.89 In most instances,the FBI will assume lead agency status for domestic investiga-tions. Several reasons support this course of action. First,Army MI jurisdiction is much narrower than the scope of crim-inal investigative jurisdiction; it extends only to soldiers andnot to civilians.90 Second, even in situations where Army MIjurisdiction exists, the FBI’s greater experience favors its pri-mary role. Third, the more byzantine procedures within themilitary approval process for electronic surveillance applica-tions make the FBI a preferred choice in time sensitive situa-tions.Step 4: Coordinate the FISA Application ProcessIn instances where the Army retains jurisdiction for a coun-terintelligence activity, a request for authority to conduct elec-tronic surveillance or to conduct a physical search for anintelligence purpose must pass through many hands. The appli-cation goes from the MI Group to the INSCOM.91 TheINSCOM will provide notice of the counterintelligence matterto the Deputy Chief of Staff for Intelligence and will forwardthe developing FISA application to the Office of the Army Gen-eral Counsel. After legal review and approval, the request forelectronic surveillance goes to the DOD General Counsel’sOffice for review. The DOD General Counsel will then seekapproval and the necessary executive branch certification fromthe Secretary of Defense, the Deputy Secretary of Defense, theSecretary of the Army, or the Under Secretary of the Army.From the DOD General Counsel’s Office, the FISA applica-tion must go to the DOJ. The Office of Intelligence Policy andReview (OIPR)92 is the section responsible for rewriting andassembling the electronic surveillance application to ensurethat it contains all of the elements and certifications required bystatute. The completed application goes from the OIPR to theAttorney General for final review and signature. An attorneyfrom the OIPR will then take the completed product to one ofthe FISC judges for review and approval.93When the FBI is the lead agency for a counterintelligenceactivity, an application under the FISA has a different route forapproval. The counterintelligence section of the FBI fieldoffice develops the facts of the case. An FBI counterintelli-86. AR 381-20, supra note 70, para. 4-2f.87. Id. para. 4 -5. The CID has the investigative lead for actual or suspected instances of sabotage. Id.; U.S. DEP’TOF ARMY, FIELD MANUAL 34-60, COUNTERINTELLI-GENCE D-4 (5 Feb. 1990).88. See supra note 16.89. Allen Interview, supra note 70.90. Judge advocates may, in situations involving civilians, elect to call directly the local FBI senior resident agent, who will then contact the counterintelligencesection of the nearest large office. The FBI is required to coordinate with the various defense departments when the counterintelligence activity involves DOD per-sonnel. EO 12,333, supra note 3, § 1.14(a). Judge advocates should still inform the MI Group legal advisor about such situations. Allen Interview, supra note 70.91. Allen Interview, supra note 70.92. The OIPR not only reviews FISA applications at the end of the process, but also will provide advice and consultation to the legal advisors of counterintelligenceagencies during the process. The primary point of contact for electronic surveillance operations and application requests is Allan Kornblum, Deputy Counsel forIntelligence Operations. Mr. Kornblum’s phone number is (202) 514-2882. Petrow Interview, supra note 45.93. A FISA court judge or the court’s legal advisor can let the OIPR know if they see a problem with an application. The government can then withdraw or amendthe application. MCGEE & DUFFY, supra note 15, at 318.
OCTOBER 1997 THE ARMY LAWYER • DA PAM 27-50-29936gence supervisory agent, located at the headquarters level, isresponsible for developing the facts to support the FISA appli-cation. The FBI General Counsel’s Office will then review theapplication and obtain the approval and certification of theDirector of the FBI. Afterwards, the OIPR will prepare thefinal electronic surveillance application to ensure that it meetsall statutory requirements. The Attorney General is the finalreview and approval authority before presentation to a FISCjudge. This process can be very speedy if the installation workswith the FBI to ensure that the application contains the mostaccurate and statutorily required information. In any case, thelawyers processing FISA applications will not know aboutpressing investigative circumstances unless the agents and law-yers from the field communicate their requirements.
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Conclusion
The intelligence agencies of the United States are responsi-ble for providing “timely and accurate information about theactivities, capabilities, plans, and intentions of foreign powersand their agents.”94 Military attorneys are responsible for pro-viding timely and accurate legal advice to ensure that militaryintelligence activities can protect the national security of theUnited States while abiding by the statutory and regulatoryframeworks which preserve civil liberties.In the area of electronic surveillance, judge advocates mustanalyze three key aspects in each situation: purpose, approvalauthority, and process. They must ensure that the purpose forthe desired collection of information is primarily one of coun-terintelligence and not law enforcement;95 know the approvalauthority required for various situations, including some wherethe approval authority lies outside of the DOD; and know howto make the process work for, and not against, them. This willoften mean that the military attorney serves as a conduit oflegally defensible and factually correct information to supportthe certifications which support subsequent FISA warrants. Anintellectual appreciation of the philosophical underpinnings ofthe law is little solace, for both lawyer and client, if the investi-gative process fails to preserve national security and allowscriminals to remain unpunished. By providing timely and accu-rate information on these three aspects, Army lawyers can dotheir part to further the intelligence efforts of the United Stateswhile serving the ends of justice.94. EO 12,333, supra note 3.95. The FISA assists in this endeavor by requiring executive branch officials to articulate the rationale for planned activities. See Mary C. Lawton, Review andAccountability in the United States Intelligence Community, OPTIMUM: J. PUB. SEC. MGMT., at 101-02 (Autumn 1993).
to your reply the "FISA" court doesn't need to verify the info. it's the FBI or other intelligence's agency that is supposed to have verified aspects of what's being reported.
so no, i don't want to give them more power. i want our intelligence agencies following normals and policy and not presenting "opposition paid rumors" to be presented to the FISA courts as facts.
the FISA court is not much different (in this aspect) than Barr is as the AG for the mueller investigation.
barr reads the "conclusions" and bases a judgement on that.
this would be like mueller bringing barr falsified info and conclusions for him to judge on. (expecting and accepting the conclusions as true)