FISA Court rebukes FBI for inaccurate applications


The presiding judge of the Foreign Intelligence Surveillance Court (FISC) has issued a public letter critical of the FBI’s warrant applications regarding Carter Page. The letter is based on the conclusions of the IG report which found a series of failures in four applications the FBI made on Page. The court is requiring the FBI to suggest ways in which to improve the process by a deadline of January 10, 2020. But the focus of the letter isn’t on solutions, the focus is pointing out that the court is unhappy with the FBI’s inaccurate submission of facts in this case:

On December 9 , 2019, the government filed with the FISC public and classified versions of the OIG Report. The OIG Report describes in detail the preparation of the four applications for electronic surveillance of Mr. Page. It documents troubling instances in which FBI personnel provided information to NSD which was unsupported or contradicted by information in their possession. It also describes several instances in which FBI personnel withheld from NSD information in their possession which was detrimental to their case for believing that Mr. Page was acting as an agent of a foreign power.

In addition, while the fourth electronic surveillance application for Mr. Page was being prepared , an attorney in the FBI’ s Office of General Counsel (OGC) engaged in conduct that apparently was intended to mislead the FBI agent who ultimately swore to the facts in that application about whether Mr. Page had been a source of another government agency…

The FBI’ s handling of the Carter Page applications, as portrayed in the OIG report, was antithetical to the heightened duty of candor described above. 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 FISC expects the government to provide complete and accurate information in every filing with the Court. Without it, the FISC cannot properly ensure that the government conducts electronic surveillance for foreign intelligence purposes only when there is a sufficient factual basis.

The letter does not say whether or not the court would have denied the warrant if it had the full picture, but the implication is that it might have seen things differently if it had been given all the facts. Indeed, the situation is serious enough that the judge is calling into question all the other warrants sought by the FBI. The NY Times points out that IG Horowitz is already looking into other cases:

Mr. Horowitz has already begun an audit of other, unrelated FISA applications to see whether there is a broader pattern of problems in how the F.B.I. is portraying the evidence about suspects. Another possibility for reform is that going forward, the bureau’s general counsel could oversee recurring audits of a random sampling of FISA applications, so that case agents will always have to take into account that someone may later second-guess their work.

The Times’s own description of the IG report is brutal, even noting that Horowitz was unable to sufficiently explain the string of failures:

The review uncovered a deeply dysfunctional and flawed process riddled with inaccuracies and material omissions. Investigators highlighted facts that made Mr. Page look suspicious while failing to mention potentially exculpatory ones, and when they sought to renew the wiretap, they failed to correct earlier statements whose credibility had since come under serious question, the report found…

The report said Mr. Horowitz’s investigators had found no evidence that political bias against Mr. Trump was behind the problems — as opposed to apolitical confirmation bias, gross incompetence or negligence. But the inspector general said the explanation the F.B.I. offered — that the agents had been busy with other aspects of the Russia investigation, and the Page FISA was a minor part of those responsibilities — was unsatisfactory.

The fact that Horowitz couldn’t rule out bias, combined with the evidence that the FBI made a series of mistakes that all tended toward the assumption Page was guilty, would be getting a lot more attention if not for the fact that it tends to undermine two years worth of Democratic talking points and media bombshells.

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