This is an unprecedented rebuke of the FBI - an important first step.
(Indictments are Coming...when ? IDGAF as long as DJT wins re-election)
Secretive Surveillance Court Rebukes FBI Over Handling of Wiretapping of Trump Aide
Presiding judge describes recent Inspector General report as ‘troubling’
WASHINGTON—A secret surveillance court issued a rare public order on Tuesday rebuking the Federal Bureau of Investigation for its handling of applications to wiretap Carter Page, a one-time Trump campaign foreign-policy adviser whose monitoring by the government has become the subject of significant public controversy.
Judge Rosemary Collyer, the presiding judge of the Foreign Intelligence Surveillance Court, called the actions of the FBI “antithetical to the heightened duty of candor” owed to the court by government agents.
“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,” Judge Collyer wrote, referring to the behavior of FBI personnel criticized in a recent Justice Department watchdog report.
Judge Collyer ordered the Justice Department to explain by Jan. 10 what steps it was taking to prevent such lapses in the future. She also indicated that she planned to release more secret material about the case in the coming weeks on the court’s public docket, offering the possibility of additional insight into the government’s most secret surveillance programs.
Since the report, several senators, including Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.), have said they may want to pursue reforms. Some surveillance provisions are up for renewal in Congress in March, presenting an opportunity for legislative changes.
The FBI has already said it planned to make several changes in the wake of the inspector general report, including overhauling its surveillance warrant process as well as its confidential human informant program. It also said it would take disciplinary action if warranted, as the inspector general referred certain FBI employees for possible disciplinary measures. It didn’t extensively detail other planned reforms to its internal procedures.
Justice Department inspector general Michael Horowitz found that the FBI had withheld exculpatory material about Mr. Page from the court and made misleading statements about his relationship with another government agency. In total, Mr. Horowitz documented 17 significant errors or omissions in a series of applications for surveillance against Mr. Page.
“The Inspector General’s report describes conduct by certain FBI employees that is unacceptable and unrepresentative of the FBI as an institution,” the FBI said in a statement.
“The Director has ordered more than 40 corrective steps to address the Report’s recommendations, including some improvements beyond those recommended by the IG. FISA is an indispensable tool in national security investigations, and in recognition of our duty of candor to the Court and our responsibilities to the American people, the FBI is committed to working with the FISA Court and Justice Department to ensure the accuracy and completeness of the FISA process,” it said.
Senior Republicans and Democrats in Congress have openly discussed potential changes to the FISA process in the wake of the Justice Department inspector general’s report, released last week, detailing numerous errors in how the FBI successfully obtained surveillance warrants on Mr. Page.
If lawmakers choose to do act, it will be important to “not exert any undue collateral damage” on the FISA statute, said David Kris, the former head of the Justice Department’s national security division, explaining that previous changes to the law have required additional legislation to fix unintended consequences.
“You’re doing surgery on a very complicated thing,” said Mr. Kris, founder of Culper Partners, a consulting firm. “That may sound trivial, but it’s actually very important for national security.”
Any changes could have ramifications for how some of the nation’s most sensitive intelligence programs are run, Mr. Kris said.
The court has long approved the overwhelming number of the government’s warrant applications and signed off on most of its surveillance activities, but in recent years it has begun scrutinizing them more closely.
The court operates in near total secrecy because of the nature of its work in approving secret surveillance of people suspected of spying and terrorism, and rarely releases its filings or orders to the public.
The order on Tuesday is the second time within the past three months the public has learned of the court issuing a stern reprimand to the FBI for how its surveillance procedures. In October, the court revealed an opinion from 2018 that found the FBI was searching a foreign intelligence database for information about Americans swept up in the program in a manner that violated constitutional privacy rights. That opinion, which the FBI unsuccessfully appealed, also forced the bureau to commit to new procedures intended to better safeguard privacy.
The court has been critical of the government in the past, but generally not publicly.
“It’s the first order we’ve seen like this since some of the things that were disclosed after Edward Snowden’s leaks,” said Stephen Vladeck, a professor at the University of Texas School of Law and an expert in national security law. Mr. Snowden is a former intelligence contractor who leaked information about the U.S. government’s domestic and international surveillance to journalists more than six years ago.
The Foreign Intelligence Surveillance Court was set up in the 1970s to oversee the government’s national security apparatus after several landmark congressional investigations revealed the widespread use of wiretaps without court authorization by the FBI on national security grounds. Its members are sitting federal judges across the country who are designated by Supreme Court Chief Justice John Roberts to serve on the FISC.
The court has been controversial, and faced renewed scrutiny following the 2013 disclosures by Mr. Snowden. Because the court operates in secrecy and deals almost entirely with classified national security matters, the public has little knowledge of its activities.
Privacy advocates seized on the order as evidence that more privacy protections were needed.
“Congress must radically reform the FISA process to increase accountability, and to ensure that there is a meaningful opportunity to challenge the government’s allegations in FISA applications,” said Neema Singh Guliani, senior legislative counsel for the American Civil Liberties Union. “We can’t trust the secret intelligence court alone to police this process.”
Civil libertarians have accused the court of being a rubber stamp for the government, saying it doesn’t exercise meaningful oversight of the nation’s spy agencies. Its defenders have argued that it serves an important function in approving national security surveillance.
In recent years, Congress has mandated more transparency for the court, requiring it to publish the number of orders that it approves, modifies or denies.
Since the information became available, denials have trended upward slightly. In 2015 and 2016, the court denied in full only 0.5% of applications it received, according to data from the court. In 2017, it jumped to about 1.5% of applications. Last year, the court denied in full about 1.8% of the roughly 1,300 applications it received. |
