A comment from a cycling buddy who is a very successful corporate lawyer here in LA:
Shaking my head with sadness when I listen to the way Fox, CNN, and MSNBC have been covering this “memo” story. This is kind of a long post, but it lays out some facts – so read on if you’re interested and move on if you’re not.
Listening to the liberal news sites, you’d think that the process for obtaining a FISA warrant is highly rigorous. But in fact, for the core pieces of information the statute only requires the court to make a finding that what the government is telling the court “is not clearly erroneous.” That’s the actual language. (Surprised? Read the statute, 50 U.S.C. 1805(a)(4), for yourself here:
https://www.law.cornell.edu/uscode/text/50/1805). The last statistics I could find (2016) showed in that year the court approved over 98% of the 1750+ applications it reviewed.
http://www.uscourts.gov/…/ao_foreign_int_surveillance_court… Oh so rigorous!
Listening to the conservative news sites, you’d think the FBI’s reliance on a partisan document to establish probable cause for a wiretap is somehow unlawful or out of the ordinary. The fact is, most probable cause – from drug cases to murder cases to international terrorism – is established on the basis of information provided by folks with an axe to grind (a warring gang; a jilted lover; a business competitor, etc.) and that has long been considered fair bounds. As the Supreme Court has said, a court is “simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.”
http://caselaw.findlaw.com/us-supreme-court/462/213.htmlYou don’t need proof for “probable cause,” you just need a little bit of reasonable evidence. And I’ve generally gathered many people – and especially most conservatives – like that standard as long as they’re not the person the government is investigating.
The fact is, the statute was written with such a low standard and permits government secrecy largely because the government wanted to spy on (mostly Muslim-) Americans where the government sorta thinks they just might be engaged in terrorism.
So we have conservatives objecting to the fairly routine use of a statute they basically like, except that it is being used against someone on their team. And we have liberals defending the statute that they basically detest, because doing so scores political points in the moment. And our press isn’t simply turning a blind eye to this, it’s feeding it.