FISA Applications to Ask Whether Target Was Government Source

August 25, 2020 Updated: August 25, 2020

Application for surveillance warrants under the Foreign Intelligence Surveillance Act (FISA) will now include questions about whether the target has provided information to the government, the FBI said in a filing made public on Aug. 24.

A former FBI lawyer pleaded guilty last week to altering information used in a FISA application. Kevin Clinesmith admitted to intentionally inserting words to an email from the CIA that had originally said Carter Page, a former Trump campaign associate, was a source for the agency.

The new application forms “will include questions about whether the target or subject of the request was previously interviewed by, or served as a confidential human source, asset, or operational contact of, the FBI, any other government agency, or a foreign government,” Dawn Browning, the acting general counsel for the FBI, told the FISA court in the filing.

The questions are one of “a number of improvements,” Browning said.

The secretive Foreign Intelligence Surveillance Court (FISC) receives applications from federal law enforcement to spy on people suspected of acting as agents of a foreign power. If approved, the warrants grant broad surveillance powers, including the retroactive collection of all communications. FISC judges approved 907 warrant applications last year.

carter page
Carter Page, petroleum industry consultant and former foreign-policy adviser to Donald Trump during his 2016 presidential election campaign, in Washington on May 28, 2019. (Samira Bouaou/The Epoch Times)

The court’s presiding judge, James Boasberg, in March ordered the FBI to finalize a number of changes to the FISA process, citing “significant factual inaccuracies and omissions relevant to whether there was probable cause to believe Page was an agent of the Russian government.” He also banned any officials involved in the application to surveil Page from participating in the preparation of FISA applications.

Page, a CIA-approved operational source between 2008 and 2013, was accused of being an agent of the Russian government. The FBI conceded that the last two warrants it secured to surveil Page were invalidated by the revelations of major errors and omissions in the applications.

The following month, Boasberg, an Obama appointee, ordered the FBI to review 29 FISA applications unrelated to Page that the Department of Justice’s Office of Inspector General reviewed. Michael Horowitz’s team found every one of the applications had a missing or inadequate Woods File—a group of records that substantiate the facts the bureau asserts in applications to the court.

DOJ officials reviewed the files and claimed that all contained sufficient basis for probable cause, with only two material errors uncovered, neither of which invalidated the warrants. The findings were in stark contrast to the 17 major errors and omissions found in the applications to surveil Page.

Department of Justice Inspector General Michael Horowitz
Department of Justice Inspector General Michael Horowitz testifies in front of the Senate Judiciary Committee in Washington on Dec. 11, 2019. (Charlotte Cuthbertson/The Epoch Times)

In the July 31 filing that was released this week, Browning, the FBI lawyer, said the reform efforts show the bureau “remains committed to ensuring that FISA applications it submits to this Court are accurate and complete.”

But other changes are also being made, including alterations to a checklist used to vet confidential human sources and FISA-related training, Browning wrote in a separate filing sent to the FISC in June.

“Revised forms alone cannot effect the changes necessary to the Government’s FISA practice,” the lawyer said. “Indeed, no request form or checklist can be perfectly designed to address every circumstance.”

Ongoing reform efforts “are extensive, multi-faceted, and ongoing,” the filing stated.

Ivan Pentchoukov contributed to this report.

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