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Hugo Stiglitz

The Robert Mueller Investigation

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1 minute ago, Anastasis said:

I’ve stated my belief that he should have been removed from office after Helsinki, impeached based on volume II of mueller report, and impeached based on Ukraine situation. I have opined on Russian election interference in this thread ad nauseum, and suggested steps to be taken moving forward, both internally facing and externally. Seriously. You guys are putting on a pathetic showing. 

Nah.  It's mostly just that any serious post you make gets lost in dozens of posts full of nothing but vague, pedantic bullshit.  That's on you.

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Nah.  It's mostly just that any serious post you make gets lost in dozens of posts full of nothing but vague, pedantic bullshit.  That's on you.

If you take away vague, pedantic bullshit, Anastasis would turn to dust.

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It’s only vague and pedantic to people who have not read the report. 

And to people who see that your priorities are insanely out of whack. Don’t forget those people. So, like, most people.

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23 minutes ago, Brisketexan said:


And to people who see that your priorities are insanely out of whack. Don’t forget those people. So, like, most people.

If the facts are against you, argue the law. If the law is against you, argue the facts, if the law and facts are against you, pound the table and yell like hell. 

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17 minutes ago, jimmyjazz said:

Good thing the law and the facts are on our side.

Not in this case of the use of uncorroborated political opposition research collected by a foreign intelligence operative by the FBI to obtain a FISA surveillance warrant against an American citizen. 

Edited by Anastasis

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Well, no.  Horowitz' findings are not consistent with other statements about the "essentiality" of the Steele dossier in securing the surveillance warrant on Page, but regardless, that dossier was not promoted as corroborated, and therefore it was already viewed with a jaundiced eye by the FISA court.

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43 minutes ago, jimmyjazz said:

Well, no.  Horowitz' findings are not consistent with other statements about the "essentiality" of the Steele dossier in securing the surveillance warrant on Page, but regardless, that dossier was not promoted as corroborated, and therefore it was already viewed with a jaundiced eye by the FISA court.

 

Go ahead and click. "Central and essential role in the decision to seek a FISA order".

We can come back and discuss the veracity of the Steele reporting and how it related to meeting the probable cause standard in more detail tomorrow. In that context we will discuss further corroboration, Steele's methods, and how it was presented to the FISA court. 

 

 

Edited by Anastasis

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First though, let's take the babiest of steps. Establishing a common understanding of the distinction between the standards required related to predication of an investigation versus the establishment of probable cause for FISA surveillance.

 

A. Predicated Investigations

Where the FBI has an authorized purpose and factual predication-that is, allegations, reports, facts or circumstances indicative of possible criminal activity or a national security threat, or the potential for acquiring information responsive to foreign intelligence requirements-it may initiate an investigation. The predication requirement is not a legal requirement but rather a prudential one imposed by Department and FBI policy. 41 Predicated investigations that concern federal crimes or threats to the national security are divided into Preliminary Investigations and Full Investigations. 42 Preliminary Investigations may be opened on the basis of any "allegation or information" indicative of possible criminal activity or threats to the national security. Authorized investigative methods in Preliminary Investigations include all lawful methods (to include CHS and UCE operations) except mail opening, search warrants, electronic surveillance requiring a judicial order or warrant (Title III or FISA), or requests under Title VII of FISA. A Preliminary Investigation may also be converted to a Full Investigation if the available information provides predication for a Full Investigation.43 As described in more detail in Chapter Three, both Crossfire Hurricane and an earlier counterintelligence investigation on Carter Page were initiated as Full Investigations, and thus we focus on the requirements for this level of predicated investigation.44

Under Section 11.B.3 of the AG Guidelines and Section 7 of the DIOG, the FBI may open a Full Investigation if there is an "articulable factual basis" that reasonably indicates one of the following circumstances exists: • An activity constituting a federal crime or a threat to the national security has or may have occurred, is or may be occurring, or will or may occur and the investigation may obtain information relating to the activity or the involvement or role of an individual, group, or organization in such activity; • An individual, group, organization, entity, information, property, or activity is or may be a target of attack, victimization, acquisition, infiltration, or recruitment in connection with criminal activity in violation of federal law or a threat to the national security and the investigation may obtain information that would help to protect against such activity or threat; or • The investigation may obtain foreign intelligence that is responsive to a requirement that the FBI collect positive foreign intelligence-i.e., information relating to the capabilities, intentions, or activities of foreign governments or elements thereof, foreign organizations or foreign persons, or international terrorists. The DIOG provides examples of information that is sufficient to initiate a Full Investigation, including corroborated information from an intelligence agency stating that an individual is a member of a terrorist group, or a threat to a specific individual or group made on a blog combined with additional information connecting the blogger to a known terrorist group. 45

A Full Investigation may be opened if there is an "articulable factual basis" of possible criminal or national threat activity. When opening a Full Investigation, an FBI employee must certify that an authorized purpose and adequate predication exist; that the investigation is not based solely on the exercise of First Amendment rights or certain characteristics of the subject, such as race, religion, national origin, or ethnicity; and that the investigation is an appropriate use of personnel and financial resources. The factual predication must be documented in an electronic communication (EC) or other form, and the case initiation must be approved by the relevant FBI personnel, which, in most instances, can be a Supervisory Special Agent (SSA) in a field office or at Headquarters. As described in more detail below, if an investigation is designated as a Sensitive Investigative Matter, that designation must appear in the caption or heading of the opening EC, and special approval requirements apply.

All lawful investigative methods may be used in a Full Investigation, including electronic surveillance and physical searches under FISA. 46 However, as described above, the FBI must consider the least intrusive means or method to accomplish the operational objectives of the investigation.

 

Now, probable cause standard.

 

 

Probable Cause

The electronic surveillance and physical search provisions of FISA require the FISC to make a probable cause finding based on information submitted by the government. Specifically, the FISC must find probable cause to believe that: (1) the target of the electronic surveillance and physical searches is a foreign power or, as described in more detail below, the agent of a foreign power; (2) for electronic surveillance, that each of the facilities or places at which the surveillance is being directed is being used, or is about to be used, by the foreign power or agent of a foreign power; and (3) for physical searches, that each of the premises or property to be searched is or is about to be owned, used, possessed by, or is in transit to or from the foreign power or agent of a foreign power. In determining whether probable cause exists, a judge may consider the target's past activities, as well as the facts and circumstances relating to his current or future activities. 120 Where the FISC authorizes the electronic surveillance or physical search of a U.S. person, the Attorney General may authorize, for the effective period of the FISC's order, the targeting of the U.S. person for the purpose of acquiring foreign intelligence information while such person is reasonably believed to be located outside the United States. 121

According to FISA guidance issued by OGC, probable cause means the following: "[P]robable cause" is reason to believe, based on the available facts and circumstances, as well as the logical inferences that can be drawn from them. It is determined by the totality of the facts and circumstances, as viewed from the perspective of a reasonable person. Probable cause [means] probability, not certainty, and, thus, is significantly lower than the "proof beyond a reasonable doubt" necessary to support a criminal conviction. It is also lower than the "preponderance of the evidence" required in most civil cases. The FISA guidance also states: [OGC] recommends that a field agent seeking a FISA order focus on the object of the belief required, i.e., the facts and circumstances demonstrating that the target of the proposed search or surveillance is an agent of a foreign power and that the premises to be surveilled ... is used by that agent of a foreign power, rather than on the quantum of the belief involved. If you can show that a target is engaged in certain activities, and that he is engaged in them for or on behalf of a foreign power, you have won most of the battle. 122 Unlike wiretap applications in a criminal case, which require the government to establish probable cause to believe that an individual is committing, has committed, or is about to commit a specific criminal offense, among other requirements, FISA does not require that the government show a nexus to criminality . 123 Rather, a probable cause finding under FISA "focuses on the status of the target as a foreign power or the agent of a foreign power," which is discussed in more detail below .124 The Report of the Senate Select Committee on Intelligence (SSCI) that accompanied the 1978 passage of FISA explains the rationale for the different probable cause standards:

f electronic surveillance is to make an effective contribution to foreign counterintelligence, it must be available for use when necessary for the investigative process. The criminal laws are enacted to establish standards for arrest and conviction[,] and they supply guidance for investigations conducted to collect evidence for prosecution. Foreign counterintelligence investigations have different objectives. They succeed when the United States can insure that an intelligence network is not obtaining vital information, that a suspected agent's future access to such information is controlled effectively, and that security precautions are strengthened in areas of top priority for the foreign intelligence service.... Therefore, procedures appropriate in regular criminal investigations need modification to fit the counterintelligence context. [FISA] adopts probable cause standards that allow surveillance at an early stage in the investigative process by not requiring that a crime be imminent or that the elements of a specific offense exist. 125 Given these differences, the FISA guidance notes that the strictures developed to assess the reliability of informants providing information used to support a wiretap application in criminal cases do not necessarily apply to FISA. 126 However, the FISA guidance nonetheless cautions that probable cause determinations should take into account "the same aspects of reliability ... as in the ordinary criminal context, including the reliability of any informant, the circumstances of the informant's knowledge, and the age of the information relied upon." The FISA guidance instructs agents to "look to the totality of the information and consider its reliability on a case-by-case basis" when judging the information supporting a FISA application. 127

 

Edited by Anastasis

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