The Septuagenarian Speaks – published April 22, 2020, Siskiyou Daily News
Because everything in the news these days is about COVID-19, and because I don’t want to add more to the din of people not knowing what they are talking about, I decided to write about something else. So, today’s topic is FISA. No, FISA is not a strain of novel coronavirus. The acronym stands for the Foreign Intelligence Surveillance Act. This federal statute was signed into law by President Carter on October 25, 1978. The law was responsive to, among other things, Richard Nixon’s use of federal law enforcement agencies to spy on political and activist groups who opposed him. It was created to provide judicial and congressional oversight over the government’s covert surveillance activities in the United States, while maintaining the secrecy needed to protect national security. The act created the Foreign Intelligence Surveillance Court (FISC). If a federal law enforcement agency, such as the FBI, wants to do electronic surveillance or a physical search of someone in the United States for intelligence purposes, it must apply for and obtain a warrant from the FISC. The court sits in Washington D.C., and consists of eleven federal district court judges who are designated by the Chief Justice of the United States Supreme Court. In other words, the law is designed to guarantee that the awesome power of the FBI to spy on individuals like you and me is only used to protect national security, and not for some more nefarious purpose, like spying on someone the FBI doesn’t like, or spying for political reasons. Although the specter of being electronically surveilled or searched by the FBI is pretty scary, I personally don’t lose much sleep over it. Why should I? The FBI doesn’t care about me. I’m just a septuagenarian in a small town. But that’s not the point.
What bothers me is that the watchdog function of the FISC isn’t working very well, and that is a problem for our country. Take for example the FBI’s Crossfire Hurricane investigation. This investigation was opened to determine whether individuals associated with the Trump campaign were coordinating activities with the government of Russia. The Crossfire Hurricane team opened individual cases in August 2016 on four U.S. persons – George Papadopoulos, Carter Page, Paul Manafort, and Michael Flynn, all of whom were affiliated with the Trump campaign at the time. This was a big deal. It set in motion a series of events consuming years of Congress’ time and resources, culminating, as we all know, in the third ever impeachment of a United States president. Also, it triggered the huge amount of the nation’s energy and resources that went into Robert Mueller’s performance as special prosecutor to investigate Russian interference in the 2016 presidential election and possible links between Trump associates and Russian officials.
The reputation and credibility of the FBI has taken a major hit as a result of the way it handled its warrant applications to the FISA court, particularly regarding Carter Page. And for good reason. The New York Times called it “sloppy.” But calling it “sloppy” is like calling COVID-19 a cold. In December, the Office of the Inspector General of the U.S. Department of Justice (OIG), led by Inspector General Michael Horowitz, identified “fundamental and serious errors in the agents’ conduct of the FBI’s accuracy review procedures.” A more recent OIG memorandum, issued March 30, 2020 made a broader systemic assessment of the FBI’s FISA court applications, and was scathing.
It seems that the FBI, or at least certain individuals within it, believing themselves to be smarter than American voters, had been dead-set on preventing Donald Trump from becoming president. The FBI applied for and obtained search warrants based to a large extent on the infamous “Steele dossier,” a private intelligence report alleging misconduct and conspiracy between the Trump presidential campaign and Russia. This report, which has since been discredited, was produced by an entity called Fusion GPS which had been hired by the Democratic National Committee and the Hillary Clinton campaign to dig up dirt against Trump. The warrant application to the FISA court, based on the Steele Dossier, asserted that the Russian government was attempting to undermine and influence the upcoming U.S. presidential election, and that the FBI believed Carter Page was an agent of Russia. The application received the necessary Justice Department approvals and certifications as required by law, and more attention and scrutiny than a typical FISA application in terms of the additional layers of review and number of high-level officials who read the application before it was signed, but the Justice Department decision-makers who supported and approved the application were not given all relevant information.
The OIG review found that the FBI personnel fell far short of the requirement in the FBI’s own policies to ensure that all factual statements in FISA applications are “scrupulously accurate.” It identified multiple instances in which the factual assertions relied upon in the Crossfire Hurricane FISA application were “inaccurate, incomplete, or unsupported by appropriate documentation, based upon information the FBI had in its possession at the time the application was filed.”
The OIG review reported serious performance failures by the supervisory and non-supervisory agents with responsibility over the FISA applications, and that they “deprived the decision makers the opportunity to make fully informed decisions.” It identified “at least 17 significant errors or omissions in the Carter Page FISA applications.” On this last point, the report stated, “We believe that case agents may have improperly substituted their own judgments in place of the judgment of OI, or in place of the court, to weigh the probative value of the information.” The acronym “OI” in the report referred to the Office of Intelligence of the FBI’s National Security Division.
But the problem is greater than just some case agents who had an agenda. The OIG report goes on: “That so many basic and fundamental errors were made by three separate, hand-picked teams on one of the most sensitive FBI investigations that was briefed to the highest levels within the FBI, and that FBI officials expected would eventually be subjected to close scrutiny, raised significant questions regarding the FBI chain of command’s management and supervision of the FISA process … In our view, this was a failure of not only the operational team, but also of the managers and supervisors, including senior officials, in the chain of command.”
I don’t usually write about stuff like this in my columns, so why am I doing so this time? It’s kind of a personal thing, having to do with the fact that I was a judge for more that 20 years (not a FISA judge, thank god). Thus far most of the criticism, rightly so, has been heaped upon the FBI. But I think the FISA judges should bear some responsibility for this as well. The later March 30, 2020 OIG Memorandum determined that the judges merely rubber-stamped the FBI’s applications, signing off on over 96 per cent of applications. This later audit, which covered a five-year period of time, found that only three of 75 FISA applications (4 per cent) were free of issues. Virtually every one of the over 70 applications the OIG selected for scrutiny – covering five years of work by FBI field offices going back to 2014 – contained unverified assertions, blatant inaccuracies, and typographical errors so blatant that they demonstrated that no one was reading the applications closely. Wouldn’t you think the judges reviewing the warrant applications would be a little more demanding? A little more discerning?
It’s good that, immediately after the March OIG report hit the street, the Presiding Judge of the FISA court issued an order demanding answers from the FBI, stating that the problems reported in the OIG audit “provide further reason for systemic concern … and reinforces the need for the Court to monitor the ongoing efforts of the FBI and DOJ to ensure that, going forward, FBI applications present accurate and complete facts.” To me, that seems too little too late.
The Fourth Amendment guarantees the right of the people to be secure against unreasonable searches and seizures, and that no warrant shall be issued except upon probable cause. I reviewed hundreds of search warrant applications during my tenure on the bench and did my best to demand a verified showing of probable cause before issuing a warrant. Some commentators argue that the FISA Court is different, that dealing with normal criminal cases is different than dealing with issues of national security, and that somehow the Fourth Amendment doesn’t apply. I have a hard time with that. I’m glad I’m not a FISA judge. I would have a hard time holding my head high if I had any part in allowing what happened. The FISA court was created to prevent the FBI from misusing its awesome and frightening power by spying on American citizens within the United States for political gain. The job of the FISA judges was to prevent that from happening. That’s what they were paid to do. They failed. I expect that in the next few weeks this story is going to become increasingly prominent in the headlines. If it doesn’t, it should.