This unprecedented order by the FISA court condemned—and verified—ongoing wrongdoing by the FBI in the entire approach to the FISA process. Judge Collyer’s order also highlighted just how serious these breaches of conduct actually were, and the potential fallout that could result from the FBI’s actions.
Collyer noted that the FBI’s actions were so egregious that their behavior “calls into question whether information contained in other FBI applications is reliable.”
In the order, Collyer, who signed the original FISA application on Carter Page, said that the FBI “provided false information” and “withheld material information” from the Justice Department’s National Security Division (NSD) and in doing so “equally mislead” the Foreign Intelligence Surveillance Court (FISC). Worth noting is that Collyer highlights the fact that the FISC received two versions of the Inspector General’s report—the public version and the classified version.
“We believe that case agents may have improperly substituted their own judgments in place of the judgment of OI [Office of Intelligence], or in place of the [FISA] court, to weigh the probative value of the information,” the IG report states.The IG report also noted that “among the most serious of the 10 additional errors we found in the renewal applications was the FBI’s failure to advise OI [Office of Intelligence] or the [FISA] court of the inconsistencies … between Steele and his Primary Sub-source on the reporting relied upon in the FISA applications.”
Judge Collyer notes in her order that the Department of Justice’s National Security Division (NSD) “reported to the FISC certain misstatements and omissions in July 2018.”
“Papadopoulos told an FBI CHS [Confidential Human Source] that, to his knowledge, no one associated with the Trump campaign was collaborating with Russia or with outside groups like Wikileaks in the release of emails. The FISA application did not include the statements Papadopoulos made to this CHS that were in conflict with information included in the FISA application.”The letter from the NSD included exculpatory statements from Papadopoulos “to the FBI CHS in September 2016, as well as similar statements Papadopoulos made to a CHS in late October 2016, after the first application was filed.” These exculpatory statements were not provided to the FISA court.
It should be noted that it was the DOJ’s NSD, and not the FBI, that provided notification of these failures by FBI officials to the FISA court.
Also worth noting is the fact that the first Page FISA was issued on Oct. 21, 2016, and the third and final FISA renewal expired in September 2017. In other words, the FISA Court was not informed of these material errors by the NSD until 10 months after the final Page FISA warrant had actually expired—and nearly one full year after the final Page FISA renewal application had been presented to the FISA court.
“On July 12, 2018, about 1 year after the last Carter Page FISA application was filed with the FISC, the NSD Assistant Attorney General submitted a letter to FISC Presiding Judge Rosemary Collyer under Rule 13{a), advising the court of certain factual omissions in the Carter Page FISA applications. These omissions included:
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Statements made by George Papadopoulos to FBI CHSs in September and October 2016 denying that anyone involved in the Donald J. Trump for President Campaign was coordinating with Russia in the DNC hack or release of emails;
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Information Department attorney Bruce Ohr provided to the FBI in November and December 2016 relevant to Steele's motivations and reliability; and
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Admissions Steele made in April and May 2017 regarding his interactions with the news media in the summer and fall of 2016.”
Specifically, the IG report noted, “The fact that the Primary Sub-source’s account contradicted key assertions attributed to his/her own sub-sources in Steele’s Reports 94, 95, and 102 should have generated significant discussions between the Crossfire Hurricane team and OI prior to submitting the next FISA.”
This issue was significant enough that Stuart Evans, the NSD’s then-deputy assistant attorney general, with oversight responsibility over the OI, claimed that “had OI been made aware of the information, such discussions might have included the possibility of foregoing the renewal request altogether, at least until the FBI reconciled the differences between Steele’s account and the Primary Sub-source’s account.”
Evans told the IG that as of October 2019, the NSD had not received a formal response from the FISA court to their July 2018 letter. Evans told the IG that while the FISA court does not respond in every case, there had been instances where the FISA court did respond “by issuing a supplemental order, asking the government for more information, or holding a hearing.”
The lack of a formal response from the FISA court may have occurred in part because on “January 31, 2019, Evans told the OIG that NSD had advised FISC Presiding Judge Rosemary Collyer that, through participation in OIG interviews, NSD Office of Intelligence (01) officials learned of additional information that was possibly material to the Carter Page FISA applications, and that NSD planned to wait until after the OIG completed its review and provided its findings to the Department before determining whether to submit another Rule 13 letter to the [FISA] court.”
The IG report noted that according to NSD officials, they believed the FISA court “may be waiting for the completion of the OIG's review, and the submission of any potential supplemental filings by NSD, before taking responsive steps, if any.”
But there was a likely explanation for the FISA court’s lack of response to that point. In addition to the June 2018 letter sent to the FISA court by the NSD, the NSD advised Presiding FISA Judge Collyer on January 31, 2019 that, “through participation in OIG interviews, NSD Office of Intelligence (01) officials learned of additional information that was possibly material to the Carter Page FISA applications, and that NSD planned to wait until after the OIG completed its review and provided its findings to the Department before determining whether to submit another Rule 13 letter to the [FISA] court.”
Despite the Jan 2019 advisement that the NSD intended to await the completion of the IG’s report, two additional letters were sent in 2019. The first was sent on May 10, 2019, and advised the FISA court of at least “two incidents in which the FBI failed to comply with the Standard Minimization Procedures” in relation to the third and final FISA renewal made on June 29, 2017.
Additionally, on Oct. 9, 2019, the NSD sent another letter to the FISA court “advising the court that the FBI completed the remedial process for the information associated with the Page FISA applications and information from other cases impacted by the same problem.” It should be noted that there are some additional details regarding these matters which remain unknown due to multiple redactions contained in footnote 379 on page 231 of the IG report.
There were also two more recent “submissions” made by the NSD to the FISA court on Oct. 25, 2019, and Nov. 27, 2019, regarding the conduct of OGC [the FBI’s Office of General Counsel] attorney Kevin Clinesmith.
It appears that the NSD did not disclose the full list of failures by the FBI—although in fairness they may not all have been known to the NSD at the time of the letters. As noted by the Inspector General, “Later in the chapter, we discuss other instances, not described in the July 2018 Rule 13 Letter, in which the three Carter Page renewal applications were inaccurate, incomplete, or unsupported by appropriate documentation, based upon information in the FBI's possession at the time the applications were filed.”
Judge Collyer’s Dec. 17 letter stated that the “The FISC's assessment of probable cause can serve those purposes effectively only if the applicant agency fully and accurately provides information in its possession that is material to whether probable cause exists.”
Collyer also noted that the government has a heightened duty of candor” to the FISA court and "expects the government to comply with its heightened duty of candor in ex parte proceedings at all times” as absolute “Candor is fundamental to this Court's effective operation.”
Her letter then noted some of the material findings within the IG Report, noting that Horowitz documented “troubling instances in which FBI personnel provided information to NSD which was unsupported or contradicted by information in their possession.”
Changes to FISA Application Evidence
Finally, Collyer addressed the material email alterations made by Kevin Clinesmith, a senior attorney in the FBI’s Office of General Counsel, which were used in a crucial part of the Page FISA renewals. Clinesmith’s email alteration deliberately removed the fact that Page had “a prior relationship” with another governmental agency, and Clinesmith has reportedly been referred for criminal prosecution by Horowitz for his actions.Cruz: “A lawyer at the FBI creates fraudulent evidence, alters an email that is in turn used as the basis for a sworn statement to the [FISA] court that the court relies on. Am I stating that accurately?”
“Because the conduct of the OGC attorney gave rise to serious concerns about the accuracy and completeness of the information provided to the FISC in any matter in which the OGC attorney was involved, the Court ordered the government on December 5, 2019, to, among other things, provide certain information addressing those concerns.”
Validity of other FISA Applications Called into Question
Collyer noted that based on the FBI’s actions in relation to these repeated errors and omissions regarding the Page FISA, it called into question “whether information contained in other FBI applications is reliable”:“The frequency with which representations made by FBI personnel turned out to be unsupported or contradicted by information in their possession, and with which they withheld information detrimental to their case, calls into question whether information contained in other FBI applications is reliable.”
The Pending Government’s Review Pertaining to the FISC’s Dec. 5 Order
Collyer ordered that the government “inform the Court in a sworn written submission of what it has done, and plans to do, to ensure that the statement of facts in each FBI application accurately and completely reflects information possessed by the FBI that is material to any issue presented by the application.”(1) Identify all other matters currently or previously before this Court that involved the participation of the FBI OGC attorney whose conduct was described in the Preliminary Letter and Supplement Letter;
(2) Describe any steps taken or to be taken by the Department of Justice or FBI to verify that the United States' submissions in those matters completely and fully described the material facts and circumstances; and
“The United States noted, however, that not all of the detailed findings of the OIG regarding those issues were contained in the letter and the full OIG's report, which was still being finalized, would be provided to the Court. To date, the Court has not received any part of that report in any form. The United States also noted that a separate Rule 13 letter describing other information of which it had become aware as a result of the OIG investigation was being prepared.
“The Court ORDERS that the government shall, no later than January 10, 2020, inform the Court in a sworn written submission of what it has done, and plans to do, to ensure that the statement of facts in each FBI application accurately and completely reflects information possessed by the FBI that is material to any issue presented by the application.”
April 2017 Memorandum Detailing Significant Problems With FISA System
It should be noted that Collyer signed (P. 83 in browser) the original Page FISA application based on the incorrect information provided by the FBI. Additional signatories were unknown FBI Supervisory Special Agent (page 54), FBI Director James Comey (page 63), Deputy Attorney General Sally Yates (page 65) and a fully redacted DOJ representative (page 66).“The October 26, 2016 Notice informed the Court that NSA Analysts had been conducting such queries in violation of that prohibition, with much greater frequency than had previously been disclosed to the Court.
The Court ascribed the government’s failure to disclose the IG and OCO reviews at the October 4, 2016 hearing [Obama’s NSD Director John Carlin – NOT Rogers] to an institutional “Lack of Candor” and emphasized that “this is a very serious Fourth Amendment Issue”.
A non-compliance rate of 85% raises substantial questions about the propriety of using of [Redacted – likely “About”] query FISA data.
There is no apparent reason to believe the November 2015-April 2016 period coincided with an unusually high rate.
The FBI had disclosed raw FISA information, including but not limited to Section 702-acquired information, to a [Redacted].
[Redacted] contractors had access to raw FISA information that went well beyond what was necessary to respond to the FBI’s requests.
[The FBI’s contractor] access was not limited to raw information for which the FBI sought assistance – and access continued even after they had completed work in response to an FBI request.
“The Court is nonetheless 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.”Collyer’s April 2017 ruling was precipitated by a series of events that began on March 9, 2016, when a discovery was made that outside contractors for the FBI had been accessing raw FISA data since at least 2015. This led to immediate action by NSA Director Rogers, who directed the NSA’s Office of Compliance to conduct a “fundamental baseline review of compliance associated with 702” at some point in early April 2016 (Senate testimony & pages 83–84 of court ruling).
On April 18, 2016, Rogers moved aggressively in response to the disclosures. He abruptly shut down all FBI outside-contractor access. At this point, both the FBI and the DOJ’s NSD became aware of Rogers’s compliance review. They may have known earlier, but they were certainly aware after outside-contractor access was halted.
The DOJ’s NSD maintains oversight of the intelligence agencies’ use of Section 702 authority. The NSD and the Office of the DNI jointly conduct reviews of the intelligence agencies’ Section 702 activities every 60 days. The NSD—with notice to the DNI Office—is required to report any incidents of agency noncompliance or misconduct to the FISA court.
“The government’s failure to disclose those IG and OCO reviews at the October 4, 2016 hearing [was ascribed] to an institutional ‘lack of candor.’”On Oct. 15, 2016, Carlin formally left the NSD.
Rogers shut down all “about query” activity on Oct. 21, 2016. “About queries” are particularly worrisome, since they occur when the target is neither the sender nor the recipient of the collected communication; rather, the target’s “query,” such as an email address, is being passed between two other communicants.
On the same day, the DOJ and FBI sought and received a Title I FISA warrant on Trump campaign adviser Carter Page—claiming that Page was “an agent of a foreign power.” At this point, the FISA court still was unaware of the Section 702 violations.
On Oct. 24, 2016, Rogers verbally informed the FISA court of his findings:
“On October 24, 2016, the government [Admiral Rogers] orally apprised the Court of significant non-compliance with the NSA’s minimization procedures involving queries of data acquired under Section 702 using U.S. person identifiers. The full scope of non-compliant querying practices had not been previously disclosed to the Court.”
“Two days later, on the day the Court otherwise would have had to complete its review of the certifications and procedures, the government made a written submission regarding those compliance problems … and the Court held a hearing to address them.”
It would seem that Carlin failed to disclose his knowledge of FISA abuse in the annual Section 702 certifications, apparently in order to avoid raising suspicions at the FISA court ahead of receiving the Carter Page FISA warrant.
The sequence of events make it appear as though the FBI and the NSD were literally racing against Rogers’s investigation in order to obtain a FISA warrant on Carter Page.
Rogers presented his findings directly to the FISA court’s presiding judge, Rosemary Collyer, informing her of ongoing FISA abuses by the FBI and NSD just three days after Collyer personally signed the Carter Page FISA warrant. Collyer and Rogers would work together for the next six months, addressing the issues that Rogers had uncovered. These efforts are disclosed in Collyer’s April 2017 ruling.
“Additionally, in light of the significant concerns we identified, the OIG announced this week that we were initiating an audit that will further examine the FBI’s compliance with the Wood’s procedures in FISA applications that target U.S. persons, not only in counter-intelligence investigations, but also importantly in counter-terrorism investigations,” Horowitz said in his testimony.
