That is interesting. I don’t know how the FISA courts fit inside the general hierarchy of our legal system. Presumably the right to appeal exists but to which court?
Catch-22 is the name of their game. Once they appoint a special prosecutor someone goes down. But often it has nothing to do with what the investigation was pursuing. Invariably someone gets called to give testimony and they lie about something trivial or inconsequential or unrelated. I’m no fan of Bill Clinton but his case is the perfect example. Ken Starr was appointed Special Prosecutor to investigate Whitewater. But these SPs will follow every lead they get. In the end Starr couldn’t build a case on Whitewater but caught BC in a lie about sex.
People lie about things that will embarrass them, or others, or to hide something unrelated to the primary reason for the investigation. And then they are charged with perjury. I gotta admit I am troubled at this. BC lied, but he lied about something that is not illegal. And it would never have come out had there been no investigation of Whitewater. So these SPs end up creating if not the exact definition of a catch-22 something akin to it. A person will be charged for lying about something that is not a crime and would never have been asked about it because it is not a crime if not for the broad discretion the SP has to pursue any lead. I am troubled by this as a matter of law, as a Constitutional matter.
Back to the FISA issue, though a slightly sideways thought, I am not a fan of the Patriot Act nor how the NSA and other agencies can spy on anyone surreptitiously. Of course if the NSA is capturing data on a US citizen without a FISA warrant they cannot introduce the evidence but that is totally besides the point. Once the NSA has the evidence of an ongoing criminal enterprise it is fairly easy for them to lead law enforcement towards the criminal act which they will then set up surveillance and gather the evidence after the fact. The guy who led the Silk Road website is assumed to have been trapped in this manner. This would be a violation of 4th Amendment but the provenance of the information is never revealed and the suspect can never challenge the case against him on 4th amendment grounds.
Ergo! I believe FISA’s purview is primarily to aid in identifying misdeeds by means of the intelligence gathering function itself and litigation arising from such activities are brought in the normal channels at the federal level. To this end, the abusive use of FISA powers, e.g., rampant surveillance of private citizens and unmasking of same for political purposes would be such an instance (or “matter” in the parlance of Loretta Lynch.) Violations of this sort would be heard in the federal district court where the deeds were perpetrated. FISA has already been very critical of the Obama administration’s use of this tool which likely the limit of what that particular body can do in such an instance.