To fully understand today’s response order (pdf here) from FISA Presiding Judge Rosemary Collyer to the DOJ/FBI, a little background context is needed.
As we noted, last weekend HPSCI ranking member Devin Nunes dropped the gloves and essentially stated the DOJ/FBI were conspiring against U.S. citizens with the wilful participation of the FISA court. This was a stunning, albeit unreported, development.
Nunes change in posture is important because he outlined that without severe corrective action the FISC should be dismantled. Additionally, on the specific issues of fraudulent applications to the FISC, in February 2018 Devin Nunes and former Judiciary Chairman Bob Goodlatte had prior communication to Judge Collyer with warnings. Very strongly worded warnings and concerns. So there’s a history on this exact issue.
In their prior communication Judge Collyer, representing the judicial branch, downplayed the warning of the legislative branch, and told Nunes and Goodlatte to work it out with the executive branch. The developments over the FISA fraud now stand against that context.
Today, Judge Rosemary Collyer responds to the DOJ and FBI about the inspector general investigation and subsequent findings. [pdf here – and full embed below] Having read her writings, and understanding that everything FISC is classified, it is possible to see between the lines she writes.
Collyer outlines in her order how the DOJ-NSD and FBI reported issues to the FISC in October and November prior to the IG report release. Essentially, Collyer infers the DOJ informed the court that additional FISA applications should now be considered unreliable as a result of the FBI Office of General Counsel compromise (Kevin Clinesmith):
The Oct/November DOJ notification led to a December 5th order by Judge Collyer.
On December 9th, when the IG report was made public, the FISC was given a declassified version of the report and was able to review for the first time. It was from that IG review that Collyer was able to establish the full context of the fraud upon the court. The court was given no advanced notification as to the totality of fraud upon the FISC other than a preliminary ‘head’s up’ on the OGC Clinesmith compromise.
As a result of the IG report, Collyer is now telling the DOJ to declassify her response of December 5th, because she is going to make it public. Judge Collyer is not asking the ODNI (ostensibly now AG Bill Barr), to declassify her response – she is telling him to declassify it.
Here’s the full opinion/order from Collyer:
The bottom line is without actual legal accountability for the fraud, everything is just a matter of words without consequence. Judge Collyer is angry, but so what… is she going to hold anyone accountable? Thus the frustration outlined by Devin Nunes last weekend.