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1/ I like @wjmcgurn’s pieces generally but I think this one—which basically claims that the 1960s electronic surveillance of MLK is akin to the 2016 surveillance of Carter Page -- is wrong or misleading for a few reasons. wsj.com/articles/about…
2/ The MLK surveillance was based on a letter from Hoover to AG RFK, which RFK approved. It was premised on a factually unsupported link between King and communists, and granted in an open-ended way for an unspecified period of time. Congress not involved. No court signed off. 
3/ Congress enacted the FISA in 1978 to ensure that surveillance of this sort was properly factually and legally predicated. Congress provided the standards for surveillance the Executive must follow, and required approval processes by Article III judges.
4/ The Page application pursuant to FISA, in contrast to the one-page King application, was almost 66 pages long. It was done pursuant to a congressionally defined standard of “agent of a foreign power,” and it was signed off on by an Article III judge. lawfareblog.com/document-justi…
5/ Also, the Page authorization was not open-ended. It was for 90 days. And it had to be renewed thereafter. The renewal application seems to have included 30+ pages of additional information. Once again the renewal had to be approved by a federal judge and was time-limited.
6/ There is all the difference in the world between these two applications in terms of factual predicate, multi-branch collaboration and approval, open-endedness, and process and fairness generally.
7/That doesn’t mean that the Page application was appropriate in every particular. Maybe the 100 pages of factual & related support were not enough. Maybe the footnote on the Steele Dossier was inadequate. Maybe the surveillance went on too long. Maybe the judge made a mistake.
8/ The DOJ Inspector General is looking at all this now, and we will have a credible answer soon. Oh yes, that is another difference between the two situations: There was no statutory DOJ inspector general in the early 1960s to do this credible, after-the-fact review.
9/ So there are in fact very few similarities between the King surveillance application/authorization and the one for Page. We have come a very long way since 1963 in the very difficult task of making foreign intelligence surveillance comport with constitutional values.
10/ Maybe we have not gone far enough, as so many conservatives seem to think. (Almost as discombobulating as witnessing conservatives attack FISA is watching progressives praise it.)
11/ It is hard to overstate how important individual FISA applications and approvals are to the government’s everyday business of keeping the country safe.
12/ In my view if there is any problem with the Page application (not saying there is), it doesn’t have to do with FISA, but rather with the qu of how & what kind of information the FBI needed before pursuing this investigation, a question logically prior to the FISA application.
13/ The FBI has explicit standards on opening an investigation, and as best as I can tell it followed them properly.
14/ But there's a qu whether there should be a higher standard of predication for surveillance of one linked to a presidential campaign, & what that standard, $ associated law and procedures, should be. Reform should focus on this qu and seek to provide better guidelines.
15/ The obsession with FISA is, I think, a misleading distraction, at least as the debate as gone on thus far. It is also a dangerous one since FISA is so vital to our national security.
16/ As for “spying”: This is a term that many use to refer to government surveillance. Those who use the term this way almost always do so as a pejorative. I have not yet found a counterexample. (Please let me know if I have missed anything.)
17/ AG Barr can of course use the term "spying" in that way if he likes. But in using “spying” to describe the matter under investigation, he seems to be sending a signal about the merits of the investigation.
18/ And that in turn seems like one of several ways that he is pre-judging a case before the investigation is complete, which is sort of what he is insinuating and criticizing about former officials on the Trump investigation. END. lawfareblog.com/good-bad-and-u…
