Keith Gartenlaub Just Notified the Ninth Circuit that Trump and Both Parties Now Support Releasing FISA Applications

During the entire period that the country has been obsessing about DOJ’s application to spy on Carter Page, who had been a legitimate counterintelligence concern going back to 2013 with renewed concern in early 2016, Keith Gartenlaub has been awaiting ruling in his challenge to his own targeting under FISA.

Only, with Gartenlaub, there is real reason to worry about the propriety — and the preconceptions about Gartenlaub’s Chinese-American wife — of the FISA application. Moreover, given the way FBI moved back and forth from FISA to criminal to FISA warrants, it seems like the government used FISA as a means to conduct a fishing expedition into Gartenlaub’s hard drives.

As I’ve been saying for a while, Devin Nunes’ stunt (and the aftermath) may lead judges to be less credulous of the government’s forty year run of claiming that releasing a FISA application would badly damage national security.

At least, that’s what Gartenlaub’s lawyer John Cline argues in a letter to the Ninth Circuit.

Throughout this litigation, the government has maintained that disclosure of the underlying FISA application, even with redactions, would cause grave damage to national security. The district court accepted the government’s argument, as has every court since FISA was enacted (with the exception of one district court, which was later reversed).

On February 2, 2018, the President–head of the same Executive Branch that is prosecuting appellant Gartenlaub–declassified and approved release of a House Permanent Select Committee on Intelligence (“HPSCI”) majority memorandum (attached as Exhibit A) that summarizes portions of a FISA application targeting an American citizen. According to the cover letter from the Counsel to the President, the President declassified the memorandum because “the public interest in disclosure outweighs any need to protect the information.” The Speaker of the House of Representatives observed that release of the HPSCI memorandum “provide[s] greater transparency” concerning FISA and helps “ensure the FISA system works as intended and Americans’ rights are properly safeguarded.” Al Weaver, Paul Ryan: Nunes memo lays out a ‘specific, legitimate’ worry about surveillance, Washington Examiner, Feb. 2, 2018.

On February 24, 2018, HPSCI released a redacted, declassified version of a minority memorandum (attached as Exhibit B), which challenges certain assertions made in the majority memorandum. The minority memorandum, like the majority memorandum, summarizes portions of the underlying FISA application.

The declassification of the HPSCI memoranda demonstrates that it is possible to discuss publicly the merits of a FISA application without damaging national security. In addition, the declassification of the memoranda highlights the absurdity of the government’s assertion, in this and other cases involving motions to suppress FISA surveillance, that any disclosure of a FISA application, even to cleared defense counsel under the protections of CIPA, would harm national security. If the HPSCI memoranda can be disclosed without harming national security, as the Executive Branch has determined, at least comparable disclosure of the Gartenlaub FISA application can be made to cleared defense counsel under CIPA without causing such harm.

The one good thing that might come out of this stunt is that defendants against whom the spying case is weak, as it appears to have been with Gartenlaub, might begin to get to review their FISA applications to see whether FBI acted improperly in obtaining a warrant.

Perhaps, with this notice to the Ninth Circuit, Gartenlaub will be the first defendant in forty years to get a real glimpse into the FISA process.

image_print
12 replies
  1. earlofhuntingdon says:

    Donald seems fond of hoisting himself on his own petard.  As long as he thinks that’s a sexual reference, maybe he’ll keep doing it.

  2. k says:

    Coupled with the fact that demented donnies defense of his house domestic abuser has now shown up in law suit challengeing devos’s attempt to eliminate the idea of sexual harassment in schools by just taking the abusers word for it.

    At least a second petard.

    Immigration ban is another issue where the doofus has poisoned the legal well against himself.

    My fear is that the drumpf apppointed ideological puppets he has gotten on to the bench will do everything they can to protect their masters. Already there is one case ( Fusion GPS case) against drumpf that has a drumpftard judge overseeing it who will NOT excuse himself for conflict of interest ( does that even exist anymore?) even though the judge (Judge Trevor McFadden before being appointed) gave to the drumpf campaign and worked on the transition.

    Ethics be damned when ideology, power and money are in play.

    • bmaz says:

      Calling him “Drumpf” is all so awesome. What else do you have ‘K’?

      Do you have anything other than a stupid slur?

          • K says:

            Logic conundrum

            In response to me suggesting you just ignore comments you state “I already did.” 

            Well that means either you commented without reading comment. Which suggest a number of unflattering traits.

            or

            You did read it to respond to it and stated you didn’t. Again a suggestion of unpleasent traits.

            Odd you ignored me agreeing that drumpf has hoisted himself on his own petard as Earl of Huntington stated and added two other incidents which reinforce that ( Muslim Ban and DOE’s new rules on sexual harassment) to focus on me using drumpf’s traditional family name.

            The reason I do this is that it is accurate and that demented donnie attacked a woman hosting another site for using a nom de plume and not using her “real” name. Will it have any effect probably not but is I feel turnabout is fair play so drumpf it is.

            It is disappointing that personal attacks seem to be your standard MO I would rather engage on issues.

            I have purposely ignored and past over any comments and articles with your name associated with it just to sidestep this sort of tripe. But alas it seems to be what you live for.

             

             

            • bmaz says:

              Aw, that is swell.

              You have anything better “K”?

              To date, you have established that you do not. Carry on!

            • matt says:

              The one who, has repeatedly used the stupid slur “sock-puppet” brings an intellectually outstanding criticism to “k,” that the pun “Drumpf” is not good enough for EW.

              • bmaz says:

                Gee Matt, you waited a whole 18 minutes after Rayne warned you about being a jerk to, again, be a jerk. You might want to heed such warnings a little better.

  3. earlofhuntingdon says:

    Carter Page, the albino monk Silas who worked for the Trump campaign and the Russians he finds so appealing.

Comments are closed.