Foreign Intelligence Surveillance Court Responds to Wiretapping Abuses

March 5, 2020 Updated: March 5, 2020

Commentary

A new order by the Foreign Intelligence Surveillance Court sets forth and reviews specific changes in the wake of government wiretapping abuses.

The most noteworthy item bars the FBI and Justice Department (DOJ) officials who were involved in the controversial wiretaps from “drafting, verifying, reviewing, or submitting” new wiretap applications while their actions are under review.

The DOJ’s Office of the Inspector General flagged multiple abuses in the wiretapping of former Trump campaign volunteer Carter Page. The Foreign Intelligence Surveillance Court (FISC) and DOJ have determined that at least two of the four wiretaps against Page were improper and are invalid.

Other actions recommended by the FISC court this week include training FBI and DOJ officials on what they should already know: That they’re required to be honest, and shouldn’t doctor documents or lie to the court explicitly or by omission.

A new FISC filing on March 4 describes “myriad errors and omissions” by the government in the Page wiretap applications. The court says FBI and DOJ fixes discussed to date would probably “reduce inadvertent errors and omissions, and they should remind agents and other responsible FBI personnel of their obligation to provide accurate and complete information.”

According to the court, “The frequency and seriousness of these errors in a case that, given its sensitive nature, had an unusually high level of review at both DOJ and the Federal Bureau of Investigation have called into question the reliability of the information proffered in other FBI applications.”

But one congressional critic of the reform process so far says, “The recommendations and changes do not address the obvious. The violations were not accidental. Doubling down on formalities and forms does not resolve the issue of bad people motivated by bad intentions.”

Below is a summary of the information contained in the new FISC filing. All of the information is according to the court.

The court asked whether an FBI attorney who allegedly doctored a document against Page has been referred for disciplinary action.

“[The FBI’s] omissions of material fact were the most prevalent and among the most serious problems with the Page applications.”

The FBI didn’t disclose Page’s prior relationship with U.S. intelligence. He had been approved as an “operational contact” from 2008 to 2013.

The FBI didn’t disclose that Page had reported to intelligence agency his prior contacts with certain Russian intelligence officers. These contacts were improperly used by FBI to justify wiretaps.

The FBI didn’t disclose that intelligence officers had deemed Page to have been “candid” in describing his Russian contacts.

The FBI Office of General Counsel attorney doctored a government email to falsely indicate that Page hadn’t been a government intelligence source.

The DOJ attorney responsible for preparing the Page applications knew that Page claimed to have been a government intel source, but didn’t check out the claim or report it.

The same attorney received documents “that contained materially adverse information,” and that information should have been included in the wiretap applications, but wasn’t.

All four FBI wiretap applications against Page relied on information compiled by Christopher Steele. He worked for Fusion GPS, a firm hired by Democrats who supported Hillary Clinton for president.

The Steele report presented to the FISC court made the following claims, in part:

(1) Russia was in control of derogatory information about Hillary Clinton that was compiled over many years. Russia had been feeding information to the Trump campaign;

(2) During a July 2016 trip to Moscow, Page discussed future cooperation and the lifting of Ukraine-related sanctions against Russia in a secret meeting with top associates of Russia President Putin.  At the meeting, participants also discussed divulging derogatory information about Clinton to the Trump campaign.

(3) Page was an intermediary between Russia and the Trump campaign in a “well-developed conspiracy of cooperation,” managed by Trump’s then-campaign manager Paul Manafort. This is how Russian-hacked emails from the Democratic National Committee (DNC) got into the hands of WikiLeaks. The exchange was made so that the Trump campaign would “sideline” Russian intervention in Ukraine as an issue.

(4) At Page’s suggestion, Russia released the DNC emails to WikiLeaks to swing voters to Trump.

The FBI didn’t disclose inconsistencies in Steele’s reporting and sourcing.

The FBI didn’t disclose that Steele himself had undercut the reliability of one of his own main sources.

The FBI omitted and mischaracterized information about Steele’s personal credibility and professional judgment.

The FBI omitted information that confirmed the political origins of Steele’s reporting and Steele’s own personal bias.

The FBI didn’t disclose that Steele was the source for a September 2016 news article also submitted in the Page wiretap applications. The fact that Steele had shared with the news media information he gave to FBI “would have shed further light on his motivations.”

The FBI claimed “Page was participating in a conspiracy with Russia by acting as an intermediary for Trump campaign manager Paul Manafort,” but omitted statements that Page made to a confidential government source that contradicted the FBI’s theory of the case.

The FBI omitted other information that showed two other Trump campaign officials, and not Page, were responsible for changing the Republican platform regarding Russia’s annexation of part of Ukraine. The FBI had claimed Page made the change at the behest of Russia.

Changes

The FBI told the court it will now require that “all information known at the time of the request and bearing on the reliability of a [Confidential Human Source] whose information is used to support the FISA application” be included in the wiretap application. Also, the FBI said the information now will be verified by the “handler” for the source.

However, the court noted that a revised request form it reviewed doesn’t include these requirements.

The government also is requiring that new wiretap applications include a checklist to document what information from a source is being used in the wiretap application. The court ordered the government to provide a copy of the checklist, an update on its implementation, and clarify whether the FBI handler of the human source is required to “verify all CHS reliability information” before the FBI submits the FISA request form.

The inspector general recommended improvements to the “Woods Form,” which was supposed to be used to ensure the FBI has verified all information in the wiretap applications. The improvements will:

(1) Emphasize the obligations to re-verify factual assertions repeated from prior applications and to obtain written approval from handling agents … of all source characterizations in applications;

(2) Specify what steps must be taken and documented during the legal review performed by the FBI … line attorney and supervisor (including clarification of what positions may serve as a supervisor) before submission of the FISA package to the FBI Director.

Modified “Woods Forms” will require FBI agents and their supervisors to verify that they have told the Department of Justice about anything that might question the accuracy of a wiretap application or the theory of the case. They must also re-verify information before renewing a wiretap application. The FBI source handler must confirm the reliability of each of the source’s statements and content.

The court stated that these measures would probably “reduce inadvertent errors and omissions, and they should remind agents and other responsible FBI personnel of their obligation to provide accurate and complete information.”

The court had directed FBI attorneys submitting wiretap applications to sign the following statement, starting March 9: “To the best of my knowledge, this application fairly reflects all information that might reasonably call into question the accuracy of the information or the reasonableness of any FBI assessments in the application, or otherwise raise doubts about the requested probable cause findings.”

The government has agreed to have FBI case agents, rather than supervisory headquarters agents, affirm the truth of the information in the wiretap application. Each agent will have to sign the following statement, also starting March 9: “To the best of my knowledge, the Office of Intelligence of the Department of Justice has been apprised of all information that might reasonably call into question the accuracy of the information or reasonableness of any FBI assessment in the application, or otherwise raise doubts about the requested probable cause findings.”

The FBI and DOJ told the court they have already conducted training on the new procedures. This training, in part, emphasizes “the heightened duty of candor” to the wiretap court.

The DOJ and FBI will now coordinate on all training for wiretap applications and procedures.

The inspector general recommended the FBI and DOJ review all employees, including senior officials, in the chain of command regarding the improper wiretaps. While those reviews are ongoing, the court has barred these officials from “drafting, verifying, reviewing, or submitting” wiretap application.

According to the court, “Any finding of misconduct relating to the handling of [Foreign Intelligence Surveillance Court] applications shall be promptly reported to the Court.”

The court has asked for updates on all of this by March 27, a summary of new training courses by May 4 (with confirmation that all have been tested and passed by July 3), a description of any reviews that bear on the described fixes by May 22, and an assessment of how well the new wiretap forms are working by June 30.

Read the court decision by clicking on the link here.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.