Did the Page FISA applications omit?

[Bricker]

@Jim_Peebles

Someone come in with the textbook description of the warrant process, please. Is it: tell only the truth, but pick and choose your facts so the judge doesn’t decide against you? Or is it tell the judge every relevant thing you know, pro and con? If it is the former, I will admit nothing unusual happened here. If it is the latter, I see a material omission (the whole point of this thread).

The answer is in post 12 (the process) and post 16 (the way courts assess the validity of an omission or an lie in the warrant):

@Bricker

Detective Smith submits an application for a search warrant, listing items he expects to find at 77 Sunset Strip that are being used to further narcotics trafficking. The accompanying affidavit says:

For the purpose of showing probable cause that a crime has been or is being committed and that the above described items exist and are located at the above described place, Affiant states the following facts which he has reasonable grounds to believe and does believe to be true:

(1) Your Affiant is a police detective employed by the county of Exampledonia, with fourteen years experience in the field of narcotics investigation.

(2) Richard Roe, of 77 Sunset Strip, provided your Affiant with photographs which he stated were taken by his cellphone camera in the basement of 77 Sunset Strip on [a date two days ago].

(3) These photographs appear to show plastic baggies, a large quantity of white powder, and a digital scale.

(4) Roe says that he rents his basement to a tenant, John Q Doe.

(5) Based on your Affiant’s knowledge, training, and experience, the presence of plastic baggies, a large quantity of white powder, and a digital scale are indications of the use and sale of controlled substances.

(6) Your Affiant was also approached independently by Sally Boe, who related that she entered the fenced back yard of 77 Sunset Strip, opened the unlocked the basement door, and observed a stack of plastic bags tightly packed with white powder and three semiautomatic pistols on a table in view of the basement door.

(7) Based on your Affiant’s knowledge, training, and experience, the presence of plastic bags tightly packed with white powder and multiple firearms is a strong indication of the sale of controlled substances.

No argument, I assume, that this is legally sufficient to support probable cause for a search warrant?

Now let’s imagine the warrant is executed, and in fact a large quantity of controlled substances and firearms are seized – and then that we later learn that Sally Boe is the vengeful ex-wife of John Q Doe, the basement tenant – and that Detective Smith knew this, but did not mention the fact in the warrant affidavit.

@Bricker

A challenge to a search warrant of that nature is resolved by the reviewing court asking, “If the offending material were removed, does the warrant still support a finding of probable cause?”

The answer for poor ol’ JQ Doe is yes: even if the vengeful ex-wife’s information is removed from the affidavit, the photograph taken by landlord Richard independently provides probable cause. So the warrant would not be likely to be quashed even if Detective Smith knew that the ex-wife evidence was fatally biased.

That’s the answer.

Is there something about that answer that you believe fails to address your question? Or is it merely that you don’t like the answer because you were hoping the answer was different?

[TriPolar]

@Jim_Peebles

If it was raw intelligence, it would not include citation to a news article based on its own leak.

The footnote did not specify exactly what was known about the dossier’s source, even with pseudonyms. More info could have been given to the judge, and might have changed the decision. (Or do you dispute that?)

Someone come in with the textbook description of the warrant process, please. Is it: tell only the truth, but pick and choose your facts so the judge doesn’t decide against you? Or is it tell the judge every relevant thing you know, pro and con? If it is the former, I will admit nothing unusual happened here. If it is the latter, I see a material omission (the whole point of this thread).

I’ll defer to Bricker’s explanation. None of the nonsense you bring up alters the validity of the basis for the warrant. I do agree the information about backing from political organizations from opposite ends of the spectrum should have been included but I don’t think it would have likely changed the decision. In fact it reinforces the need to investigate further.

[Whack-a-Mole]

@Jim_Peebles

From the footnote:
“The FBI speculates that the identified U.S. person was likely looking for information that could be used to discredit Candidate #1’s campaign.”
So let’s say the judge has some informal equation in mind. If it comes out positive approve the warrant, if not deny. Absent the footnote the judge is at a +1.0. Adding in the footnote with “SPECULATES a US person” knocks it down to. +0.2: would still approve. “KNOWS it is opposing candidate X” knocks it down to -0.3: would deny.

You do realize that when they go looking for something to discredit someone with they generally want to find something that actually happened right?

So just telling the judge that a former British spy was paid to find something on person-X does not make the judge think the information is unreliable. Why would it?

Indeed Christopher Steele has some pretty great credentials when it comes to information he gets. Paying him to find info is not much to discredit him.

[Procrustus]

@Jim_Peebles

If it was raw intelligence, it would not include citation to a news article based on its own leak.

The footnote did not specify exactly what was known about the dossier’s source, even with pseudonyms. More info could have been given to the judge, and might have changed the decision. (Or do you dispute that?)

Someone come in with the textbook description of the warrant process, please. Is it: tell only the truth, but pick and choose your facts so the judge doesn’t decide against you? Or is it tell the judge every relevant thing you know, pro and con? If it is the former, I will admit nothing unusual happened here. If it is the latter, I see a material omission (the whole point of this thread).

I know nothing about FISA process, but in a normal warrant there is no obkigation to give the judge a balanced view of your facts. Obviously, you can’t lie, but you can certainly pick and choose the facts you contend establish probably cause.

[Banquet_Bear]

@Jim_Peebles

How does it work?

…I would suggest that this is your problem. You don’t understand how it works.

Bricker has provided excellent information in this thread about many of the legal aspects of “how it works.” Cites have been provided from a former assistant attorney general for national security, associate deputy attorney general, trial attorney at the Department of Justice who explains again “how it works.”

So this:

“+1.0. Adding in the footnote with “SPECULATES a US person” knocks it down to. +0.2: would still approve. “KNOWS it is opposing candidate X” knocks it down to -0.3: would deny.”

has nothing to do with any process as we understand it. The weighting you’ve assigned to things such as “KNOWS it is opposing candidate X” are purely inventions on your part. If you want to know how it all works, then read the thread, read the related cites. Ask questions, because there are people in this thread who have much more experience with the process than either you or I. But nobody has any interest in playing rhetorical games.

[elucidator]

It’s dead, Jim Peebles. Jim Peebles, this thread is dead.

[Bricker]

In case it wasn’t clear: I certainly agree that a best-practice would be to include exculpatory information known to the affiant.

But the remedy for failing to do this, at present, is the analysis I mentioned above. If you don’t like this, call your senators and congressional representative and ask them to sponsor legislation changing the law. They can do that. But you cannot be heard to complain that the current law was not followed here.

[RitterSport]

Bricker, I very much appreciate your patience here.

Jim Peebles, you started this thread with questions, but it seems that you already thought you had all the answers and have been unwilling to move from that position, even when presented with external cites and an excellent explanation from Bricker. We can’t re-run the universe and see what would have happened had the FBI followed your process. So, what are you looking for?

Is it your concern that all the evidence shows so much obvious wrongdoing that you’re hoping that it’s all fruit from a poisoned tree? Would you like to see high-level government officials get away with whatever wrongdoing you’re concerned has been discovered (collusion with a hostile power?, campaign finance violations?, corruption?) based on a technicality? (Note, I don’t agree this is a technicality, I’m trying to understand your position)

[Jim_Peebles]

I started this thread wondering if there was an omission or not. The consensus seems to be: yes, but it wouldn’t get the warrant or the “fruit of the tree” thrown out. I never expected it would. I wasn’t wondering about getting stuff thrown out. On the side: I also learned FISA applications strangely (to me) mask all US person names. I would have guessed just the target would be masked, and not others, to give the judge a clearer view: the proceedings are secret afterall, so why mask the others? But no, apparently also US people providing evidence against the target are masked.

[Ravenman]

There is no consensus that there was an omission. You and Tom Tildum just kept repeating that there was.

You still haven’t answered whether there would be a substantive difference in the application if, say, John Kasich had funded the investigation instead of Hillary.

[Jim_Peebles]

@Jim_Peebles

The distinction is discussed here:

https://www.washingtonexaminer.com/news/fisa-warrant-application-supports-nunes-memo

“For the most part, names were not used in the application, but Donald Trump was referred to as “Candidate #1,” Hillary Clinton was referred to as “Candidate #2,” and the Republican Party was referred to as “Political Party #1.” Thus, the FISA application could easily have explained that the dossier research was paid for by “Candidate #2” and “Political Party #2,” meaning the Democrats. And yet the FBI chose to describe the situation this way, in a footnote: …”

Do you think this constitutes an omission?

[GIGObuster]

@Jim_Peebles

Do you think this constitutes an omission?

Based on what Bricker and other lawyers report… NO.

As a teachable moment, you should notice, as I did already; that your cite there was a hiper-biased source that works also for the same FOX news that was found to mislead people about this case.

[UltraVires]

@Bricker

The answer for poor ol’ JQ Doe is yes: even if the vengeful ex-wife’s information is removed from the affidavit, the photograph taken by landlord Richard independently provides probable cause. So the warrant would not be likely to be quashed even if Detective Smith knew that the ex-wife evidence was fatally biased.

Is this a good analogue to the Page FISA warrant? If we remove the information contained in the dossier completely from the warrant affidavit, does probable cause remain?

[Procrustus]

@Jim_Peebles

Do you think this constitutes an omission?

Everything not included could be considered an “omission.” What we’re all saying is it was not a material omission. Nor an unusual omission. Nor an unethical omission. I will grant you, though, it was an omission.

[Left_Hand_of_Dorkness]

@Jim_Peebles

Do you think this constitutes an omission?

Let’s agree it’s an omission. Also, I once visited Yellowstone National Park. That wasn’t mentioned in the FISA application. Can we also agree that that was an omission?

Serious, now:

1. Do you agree that it’s important whether an omission is relevant?
2. If so, do you agree that it’s irrelevant WHICH opposition candidate paid for Steele’s research, when deciding whether it’s reliable enough to establish probable cause?
3. If you disagree with #2, please explain precisely HOW it’s relevant that Clinton, and not someone else, was paying for Steele’s research.

If you can explain #3, then you have a case. If you can’t, then you don’t.

[Jim_Peebles]

@Jim_Peebles

From the footnote:
“The FBI speculates that the identified U.S. person was likely looking for information that could be used to discredit Candidate #1’s campaign.”
So let’s say the judge has some informal equation in mind. If it comes out positive approve the warrant, if not deny. Absent the footnote the judge is at a +1.0. Adding in the footnote with “SPECULATES a US person” knocks it down to. +0.2: would still approve. “KNOWS it is opposing candidate X” knocks it down to -0.3: would deny.

The above makes the omission material, in my view at least. Also a judge knowing the funding capabilities of the funder might give more weight to the possibility people were paid off to lie.

[CurtC]

@Jim_Peebles

I don’t have any hopes the application will be “impeached”.

Yet that’s exactly what you’ve been trying to this whole thread!

[elucidator]

Also, I keep reading about “the judge” this, and “the judge” that. But there were several, were there not? All reaching the same conclusion?

[nachtmusick]

@Jim_Peebles

The above makes the omission material, in my view at least. Also a judge knowing the funding capabilities of the funder might give more weight to the possibility people were paid off to lie.

The people best able to decide whether an omission is material are of course the FISA court judges themselves. I think we can all grant that they are more expert about FISA law than any of us bystanders, and are certainly more qualified than anybody else to determine what they knew and what more they might need to know to make a proper ruling. If they felt that the material presented to them was too ambiguous, or had any doubts about what parties were being referred to, they had complete authority to deny the applications and/or order the FBI to clarify. The fact that they didn’t is evidence that they didn’t view the omissions to be material. I’m inclined to accept their views over yours.

Outside of the courtroom, these judges would have all had to have been living under a pretty large rock not to know who the relevant candidates were and figure out their likely motivations.

[Whack-a-Mole]

@Jim_Peebles

The above makes the omission material, in my view at least. Also a judge knowing the funding capabilities of the funder might give more weight to the possibility people were paid off to lie.

Well, if you are right, this will be brought up in court and a ruling will be made. If your side does not like the ruling they can appeal it. And if that appeal fails I think they get one more shot with the Supreme Court.

Point is they will have plenty of opportunity to make the case that the omission is material.

I am curious though, if they lose those cases/appeals, will you still feel the omissions are material?

Put another way what would satisfy you that the warrant was properly done?