“While the IG’s 478-page report includes many damning details, the following passage indicates that the FISA court abdicated its responsibility of providing “an external check on executive branch decisions to conduct surveillance” in order “’to protect the fourth amendment rights of U.S. persons.”
This paragraph describes how the government described their sources to the FISA court:
The final application submitted to the FISC contained a description of the source network that included the fact that Steele relied upon a Primary Sub-source who used a network of sub-sources, and that neither Steele nor the Primary Sub-source had direct access to the information being reported. The drafts, read copy, and final application also contained a separate footnote on each sub-source with a brief description of his/her position or access to the information he/she was reporting. The Supervisory Intel Analyst assisted the case agent in providing information on the sub-sources and reviewed the footnotes for accuracy. According to the [Office of Intelligence] Attorney, the application contained more information about the sources than is typically provided to the court in FISA applications. According to [the Deputy Assistant Attorney General, Stuart] Evans, the idea was to present the source network to the court so that the court would have as much information as possible.
From this paragraph we know that the FISA court was expressly told that neither Christopher Steele nor his primary sub-source were the actual sources of the information included in the FISA applications. Instead, the FISA applications made clear that Steele and his primary sub-source were repeating information other individuals told them. And it appears from this passage that the only additional information provided to the court concerned a sub-source’s “position” or “access to the information” on which he was reporting.
Further, there appears to be no assertion in the FISA applications that the sub-sources were reliable. (Even if the FISA applications professed the reliability of sub-sources, “courts hold that conclusory statements that informants are ‘believed to be reliable sources,’ ‘standing alone without any supporting factual information, merit absolutely no weight and that information obtained from a reliable source must be treated as information obtained from an informant of unknown reliability.’”) Instead, the FISA applications focused on Steele’s supposed reliability.
But as a legal matter, that is not enough: Even though the probable cause threshold is low, “an untested, unidentified informant’s second-hand report” does not “clear the bar.” (Read more: The Federalist, 1/10/2020) (Archive)