DOJ Uncovered Misuse of Counterintelligence Data by FBI in 2016

June 3, 2018 Updated: June 6, 2018

In the midst of the 2016 presidential elections, oversight personnel with the Department of Justice made a troubling discovery: The FBI had provided the communications of American citizens to private contractors.

The discovery, which is detailed in a declassified top-secret report by the Foreign Intelligence Surveillance Court (FISC), details multiple violations by the FBI of policies intended to safeguard communications of Americans.

The firm, whose name is redacted in the report, is described as being “largely staffed by private contractors.”

According to the FISC, the apparent purpose for the FBI to provide access to the sensitive Section 702-acquired data was to receive analytical assistance.

“Nonetheless, the [redacted] contractors had access to raw FISA [Foreign Intelligence Surveillance Act] information that went well beyond what was necessary to respond to the FBI’s requests,” the FISC report reads.

In doing so, the FISC determined in its report, which was declassified and published in April 2017, that the FBI had broken so-called minimization procedures intended to prevent the sensitive data from being misused or falling into the wrong hands.

Law enforcement normally requires a warrant to monitor or search the communications of an American citizen under Section 702 of FISA, which primarily targets foreigners outside the United States but captures communications of Americans as well.

Minimization and targeting procedures detail the conditions under which communications involving American citizens can be accessed and are intended to protect against the data being accessed improperly.

The FBI has access to the data collected under Section 702 by the National Security Agency.

The National Security Agency (NSA) in Fort Meade, Maryland, in this file photo. (PAUL J. RICHARDS/AFP/Getty Images)

The DOJ oversight personnel found that the FBI had violated the procedures in multiple instances. In a separate case, it provided 702-collected data to a private entity. Those working for the private entity were not supervised or under the direct control of the FBI.

The violations, discovered on March 9, 2016, prompted a rare rebuke, and the FBI discontinued the access private contractors had to the raw FISA information by April 18, 2016.

“The Court is … concerned about the FBI’s apparent disregard of minimization rules and whether the FBI may be engaging in similar disclosures of raw Section 702 information that have not been reported,” the FISC report reads.

Trump Campaign

The FBI used counterintelligence tools to spy on the Trump campaign in 2016, and possibly as early as 2015.

In a May 16 article, The New York Times cited unnamed FBI agents as saying the agency used national security letters to spy on the Trump campaign.

National security letters allow the FBI to demand that internet service providers, banks, and telephone companies provide records on specific individuals.

To this day, most details of the FBI’s counterintelligence investigation of the Trump campaign over alleged connections to Russia remain unclear, including when the investigation was started and what cause the agency used for justification to open the investigation.

Text messages between Peter Strzok, the lead agent on the FBI’s counterintelligence investigation, and Lisa Page, an FBI lawyer, have shed some light on these questions.

Around 10,000 messages sent between Strzok and Page had been obtained by the DOJ inspector general, and many have since been released publicly in redacted form.

In an April 30, 2016, message, either Strzok or Page (sender and recipients are not distinguished in text messages as published) writes, “And now we’ve switched from the Patriot Act to a wire carrying current. [redacted].”

The Patriot Act amended FISA, providing the legal authorization for the surveillance authorized by FISC. In the wake of the March 9 FISC criticism of the FBI, the agency appears to have changed the way its surveillance was authorized. According to Marc Ruskin, a 27-year veteran of the FBI, the Patriot Act and “wire carrying current” that Strzok and Page talked about likely referred to the legal justification used for surveillance.

“Since they can no longer use the Patriot Act for legal intercepts, they’re instead tapping into this other form of intercepts,” Ruskin said.

The timing of the texts, on April 30, 2016, also lines up with the timing of the issuance of the FISC decision, which forced the FBI to stop the use of FISA-data in certain ways by April 18 that year because of the previous misuse.

It is unclear whether this Page and Strzok text is referring to the surveillance of the Trump campaign, which cannot be verified given the lack of knowledge about when the investigation was started.

Strzok, however, was the lead agent on the case, and most of the texts related by the agents pertained to the Trump investigation.

Trump Dossier

The limitations placed on the FBI’s use of Section 702-acquired data by April 18 also sheds light on the timing of the so-called Trump dossier.

The dossier was produced by Fusion GPS at the direction of the Clinton campaign and the Democratic National Committee, both of which were responsible for the financing behind the report.

The Trump dossier was used extensively by the FBI in its application to the FISC for a FISA warrant on Trump campaign volunteer Carter Page.

Under the so-called “two-hop” rule, the FISA warrant could have been used to spy on anyone with two layers of separation from Page himself. This means that both of the people Page was in contact with himself at the campaign could have had their communications surveilled, which is the first hop, as well as anyone who was in contact with those campaign officials, the second hop.

A declassified House intelligence committee memo released in February revealed that the FISC court had not been informed by the FBI and DOJ in the application for the FISA warrant on Page that information contained in the application had been paid for by the Clinton campaign and the DNC.

“Neither the initial application in October 2016, nor any of the renewals, disclose or reference the role of the DNC, Clinton campaign, or any party/campaign in funding Steele’s efforts, even though the political origins of the Steele dossier were then known to senior DOJ and FBI officials,” the memo reads.

This means that after the FISC investigated the FBI’s misuse of FISA obtained data, the FBI used the Trump dossier as a justification to obtain a FISA warrant, which gave it official approval.

The FBI’s investigation is currently continued by special counsel Robert Mueller, after then FBI Director James Comey was fired by President Donald Trump on the recommendation of Deputy Attorney General Rod Rosenstein and Attorney General Jeff Sessions.

A joint intelligence investigation headed by then-Director of National Intelligence James Clapper found in January 2016 no evidence of collusion between the Trump campaign and Russia.

Correction: A previous version of this article incorrectly stated the year in which the FBI discontinued the private contractors’ access to raw FISA data. This took place in  2016. The Epoch Times regrets the error.

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