Fellow Kossack khaavren has provided a link to the best critique I have yet seen on the Nunes memo, which demolishes the whole foundation of the Nunes memo, which rests on the false assumption that FISA procedures were abused in obtaining warrants to surveil Carter Page.
Unrolled-for-easy-reading thread here: [72 tweets from @SethAbramson].
Source: www.dailykos.com/…
Abramson’s commentary includes the following remarks:
16/ It (the Nunes memo) says FISA warrant applications must meet the "highest standard" of proof in the justice system. Uh, no. The "highest standard" in the justice system is "proof beyond a reasonable doubt," which is nowhere *close* to the legal standard required to secure a search warrant.
17/ The legal standard for securing a warrant is the *lowest* standard of proof in the law—"probable cause." (Consider: *indictments* require probable cause, which is why they say "the average grand jury would indict a ham sandwich.")
FISA warrants are granted in 99%+ of cases.
18/ As @AshaRangappa_ notes, the specific FISA standard is "probable cause that the target is an 'agent of a foreign power' who's 'knowingly engaging in clandestine intelligence activities.'" Remember: the FBI already found that—as to Page—in a 2013 probe.
19/ In '13, the FBI suspected Page of being a Russian spy—18 months before Trump announced his presidential run—because Page was meeting with a known Russian intelligence agent who was ultimately convicted of trying to recruit Americans. Page admitted he was a recruitment target.
20/ So given that FISA warrants require the lowest standard of proof in the law, and FISA warrants are granted in 99%+ of cases, the idea that the FBI would have needed Steele at *all* to meet that standard and get that warrant as to Page is—to some degree—*literally* laughable.
21/ The memo then makes *another* error of law on its first page: saying the law requires "all relevant and material facts" to be shown to a warrant-granting court. But that's not true. Many cases confirm that law enforcement can and does leave out key facts without repercussion.
22/ If you doubt this, check out the work of Orin Kerr, who's done a lengthy analysis of the case law on this very issue (which is clearly something that the Nunes staffers working on behalf of Trump and Nunes did *not* do):
23/ A *third* legal error on just the *first page* of the memo is it says "all potentially favorable" information—i.e., favorable to the proposed warrant target—must be included in the warrant application. Uh, no, and moreover, this *never* happens in the criminal justice system.
24/ Because we have an adversarial system of justice, and because the standard of proof to secure a warrant is so low, judges *never* expect (and almost *never* find) that the government included "all information potentially favorable to the defendant" in its warrant application.
25/ Let me be blunt, law-and-order types: if our justice system worked the way the Nunes Memo says it does—thank god it doesn't—our crime rate would be ten times higher and our criminal justice system wouldn't have the resources to operate. Jail doors would have to be flung open.
UPDATE, 9:45pm EST Feb 2 2018
I am adding a question mark to the title of this diary because of a conflicting narrative identified by Glen the Plumber, Five Questions The Nunes Memo Better Answer which gives a totally different picture of FISA procedures and implies a much more rigorous process than does Abramson’s description…. which leaves us with… which one is right ?