We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
WE’RE THE GOVERNMENT, YOU CAN TRUST US
In what probably did not shock any inmate reader of this newsletter, the Dept. of Justice inspector general issued a report last week that the FBI’s four applications for Foreign Intelligence Surveillance Act search warrants for Trump foreign policy advisor Carter Page contained 17 significant errors, including one where an FBI lawyer altered a document relied on to extend the search warrant, thus inverting its meaning. The IG found that had the document not been altered, Page’s contacts with the Russians would have been seen in a “much different light,” one that suggested the contacts were proper.
“We concluded that the failures… represent serious performance failures by the supervisory and non-supervisory agents with responsibility over the FISA applications,” the report says. “These failures prevented (the Justice Department) from fully performing its gatekeeper function and deprived the decision makers the opportunity to make fully informed decisions. Although some of the factual misstatements and omissions we found in this review were arguably more significant than others, we believe that all of them taken together resulted in FISA applications that made it appear that the information supporting probable cause was stronger than was actually the case.”
FBI defenders have argued that “the FBI and Justice Department are extraordinarily careful and meticulous in how they present evidence to the FISA court, which is no rubber stamp,” according to NBC News. If that is so, imagine how sloppy and conniving the FBI must be on run-of-the-mill search warrants, which seldom get much scrutiny from the judges who sign them.
The FBI says it will institute reforms, an announcement that will make everyone feel better. Meanwhile, you can continue to trust the agency as a thoroughly professional organization of highly-trained professionals dedicated to protecting you and your family, while scrupulously observing the civil rights of the accused.
That’s a lot like the BOP.
Back in 2010, the warden at ADX Florence began banning Prison Legal News as “detrimental to the [facility’s] security, good order or discipline” under 28 CFR 540.71(b). PLN sued under the 1st Amendment, the 5th Amendment and 5 USC § 706(2) of the Administrative Procedure Act. After PLN sued, the warden folded like a cheap suit, distributing the 11 banned publications, revising ADX’s institutional policies, and issuing a declaration from its current warden that the old policy would not be reinstated. PLN didn’t believe it, and asked for a court ruling on its claims.
Based on these actions, the BOP moved for summary judgment, arguing that PLN’s claims were moot or not ripe. PLN filed a cross-motion for partial summary judgment on its constitutional and 706(2) claims. The district court agreed with the BOP that PLN’s claims were moot, and dismissed the case.
Last Friday, the 10th Circuit agreed, holding that the BOP had made “clear the [BOP’s] allegedly wrongful behavior could not reasonably be expected to recur.”
Of course not. Never happen again.
By the way, in early November, the warden at FCI Herlong banned email newsletters on legal matters, “because the Bureau has determined that such communication is detrimental to the security, good order, or discipline of the facility, or might facilitate criminal activity.”
NBC News, The FBI’s warrant system for spying on Americans is a mess, the IG report shows (Dec.10)
Prison Legal News v. Fed. Bureau of Prisons, 2019 U.S.App. LEXIS 36955 (10th Cir. Dec. 13, 2019)
– Thomas L. Root