by Robert Romano
The House has passed legislation to reform the Foreign Intelligence Surveillance Act (FISA) by U.S. Rep. Jim Jordan (R-Ohio) and House Judiciary Committee Chairman Jerry Nadler (D-N.Y.) by a margin of 278 to 136.
The bill reauthorizes the program and clearly does not go far enough, but it includes new provisions to ensure that exculpatory information in the government’s possession is brought to seniors members of the Justice Department. Applications to the FISA court must now make certifications that the Justice Department has been briefed on “all information that might reasonably… call into question the accuracy of the application or the reasonableness of any assessment in the application conducted by the department or agency on whose behalf the application is made.”
The bill also requires the Attorney General to “promulgate rules governing the review of case files, as appropriate, to ensure that applications to the Foreign Intelligence Surveillance Court under title I or III of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) that target United States persons are accurate and complete.”
The bill improves Congressional oversight, and gives the House and Senate intelligence committees the ability to gain access to FISA warrant applications. But it may fall short. It still depends on members of the committees learning about FISA abuse in real time and then securing access. That said, such a provision would have undoubtedly helped U.S. Rep. Devin Nunes (R-Calif.) when he was chairman of the House Intelligence Committee to expose the FISA fraud much sooner. The Justice Department delayed release of documents, and the FISA warrant application was only made public via a Freedom of Information Act request by Judicial Watch.
In other areas the legislation completely misses the mark, requiring Attorney General sign off only on applications targeting a candidate for federal office or an elected official. Carter Page was not a candidate. He was a campaign volunteer. That was the cute way to spy on Trump without making him the target of the warrant. And the new bill authorizes it. The bill as written would not require the Attorney General to have even looked at the Carter Page FISA applications. Just don’t target the candidate or official, and the Attorney General doesn’t need to see the application. This is embarrassing.
The penalties for abuse of the process are equally pathetic. Six months for contempt for deceiving the court to spy on Americans and engage in a bureaucratic coup against the duly elected President? C’mon.
And what about the hearsay and probable cause problem? The Justice Department managed to get court-ordered surveillance against an entire presidential campaign, transition and then administration without so much as an eyewitness. The source was not a source, and neither were his sources. It was hearsay from a foreign intelligence agent designed to put President Trump in the worst possible light, but was completely unverifiable and unverified when the Justice Department unleashed the investigation, and unverifiable by the court that apparently doesn’t need evidence.
That’s because probable cause is not what you think it is. According to the Mueller report, FISA applications only require a “fair probability” of being a foreign agent, “On four occasions, the Foreign Intelligence Surveillance Court (FISC) issued warrants based on a finding of probable cause to believe that Page was an agent of a foreign power. 50 U.S.C. §§ 1801(b), 1805(a)(2)(A). The FISC’s probable-cause finding was based on a different (and lower) standard than the one governing the Office’s decision whether to bring charges against Page, which is whether admissible evidence would likely be sufficient to prove beyond a reasonable doubt that Page acted as an agent of the Russian Federation during the period at issue. Cf United States v. Cardoza, 713 F.3d 656, 660 (D.C. Cir. 2013) (explaining that probable cause requires only ‘a fair probability,’ and not ‘certainty, or proof beyond a reasonable doubt, or proof by a preponderance of the evidence’).”
That is the thorny problem that Congress must address. Intelligence as a practice inherently relies on hearsay and whisper networks. Those could be rumors, or they could be real actionable intelligence. You don’t know ahead of time. And so the system relies on the veracity and honesty of the agents in the field, and that they do not have bad motives for targeting political opponents.
That is why political campaigns and politics in general needs to be separated forevermore.
The devil’s advocate would say we need these surveillance tools to apprehend terrorists, the mob and drug cartels, and so the answer appears to be, use it on them. But political campaigns? Why was Carter Page and the Trump campaign given the same treatment as an al Qaeda terrorist? The initial application did not even include the fact that Page had acted as an agent on behalf of the CIA and this fact was even covered up to keep the spying going. He was on our side, and the FISA system did not even know it when it declared him an enemy of the state.
For that is what FISA at its heart is, an excuse to spy on Americans or unpopular political parties as if they were foreign agents or terrorists. President Trump and his campaign were enemies of the state. And so they were spied on and attempted to be framed for crimes they did not commit.
There’s a reason why treason in the Constitution requires eye witnesses. According to a Constitution Center paper by Paul Crane and Deborah Pearlstein, “While the Constitution’s Framers shared the centuries-old view that all citizens owed a duty of loyalty to their home nation, they included the Treason Clause not so much to underscore the seriousness of such a betrayal, but to guard against the historic use of treason prosecutions by repressive governments to silence otherwise legitimate political opposition. Debate surrounding the Clause at the Constitutional Convention thus focused on ways to narrowly define the offense, and to protect against false or flimsy prosecutions.”
The threshold for spying on political institutions should be clear and convincing evidence and eye witness testimony. You’re not trying to stop a terrorist attack or find a bomb before it goes off.
The Senate must improve on this bill, or else President Donald Trump should veto it and approve a temporary authorization to provide enough time to get this done right. There is too much at stake.
The reason FISA was passed in 1978 was because the CIA was spying on anti-war protesters, reporters and even members of Congress in the Vietnam War era. It was to rein in the surveillance state.
The abuses we saw in 2016 were as bad or worse than anything that occurred back then.
U.S. intelligence agencies and the Justice Department engaged in court-approved spying of the Trump campaign, the opposition party, in an election year on what’s turns out were false charges that President Donald Trump and his campaign were Russian agents who helped hack the Democratic National Committee and John Podesta email and put them on Wikileaks.
There were a ton of reasons to “call into question the accuracy of the application” made by the government to do this.
The allegations originated from the DNC and the Hillary Clinton campaign, who hired Fusion GPS and former British spy Christopher Steele to produce the fake dossier, and then were forwarded to the FBI, who initiated the investigation, resulting in an Oct. 2016 Foreign Intelligence Surveillance Act (FISA) warrant against then-Trump campaign advisor Carter Page, his contacts, and his contacts’ contacts. It gave the government access to campaign emails, phone calls, text messages and other communications.
This was the same dossier that was briefed to then-President-elect Donald Trump in Jan. 2017 by former FBI Director James Comey — right before it was reported on by CNN and published by Buzzfeed, sending the nation into a new Red Scare — who later told Congress that it was “salacious and unverified” even as his agency was using it to get the warrants were renewed.
The warrant was renewed three times even after Jan. 2017, when the FBI learned that Steele’s source had contradicted him when questioned by the FBI. According to Justice Depatment Inspector General Michael Horowitz’ report, once the main source that Steele used was contacted, “the Primary Sub-source made statements during his/her January 2017 FBI interview that were inconsistent with multiple sections of the Steele reports, including some that were relied upon in the FISA applications. Among other things, regarding the allegations attributed to Person 1, the Primary Sub-source’s account of these communications, if true, was not consistent with and, in fact, contradicted the allegations of a ‘well-developed conspiracy’…”
Instead, the Justice Department doubled down. Per Horowitz, “However, we found no evidence that the Crossfire Hurricane team ever considered whether any of the inconsistencies warranted reconsideration of the FBI’s assessment of the reliability of the Steele reports or notice to OI before the subsequent renewal applications were filed. Instead, the second and third renewal applications provided no substantive information concerning the Primary Sub-source’s interview…”
And yet Speaking to Fox News’ Chris Wallace on Dec. 15, Comey says that the sub-source interview did not occur until after Buzzfeed published the dossier, creating a challenge for investigators (and a ready-made excuse for Comey): “that doesn’t drive a conclusion that Steele’s reporting is bunk. I mean, there’s a number of tricky things to that. First, you’re interviewing the sub-source after all of the reporting has become public. And so, as a counterintelligence investigator, you have to think, ‘Is he walking away from it because it’s now public?’… This is when it blew up, when it was published by whatever the outfit is — BuzzFeed. It was all over the news and had become a big deal.”
And that he had no idea that Steele had been contradicted by the primary sub-source: “As the director, you’re not kept informed on the details of an investigation. So, no, in general, I didn’t know what they’d learned from the sub-source. I didn’t know the particulars of the investigation.”
So, the FBI was spying on the President of the United States, his 2016 campaign and his administration presumably, and the FBI Director says he was “not kept informed on the details of an investigation.” What the heck?
This goes to the heart of the reforms being considered, but it is based on a lie. What prompted the FBI to investigate the sub-source only after Buzzfeed had published the dossier? Who ordered it? And afterward, who sat on it? Who knew about it? Was Special Counsel Robert Mueller aware? It’s unbelievable that nobody’s talking. Attorney General William Barr and U.S. Attorney John Durham must expose the perpetrators who lied to the American people and lied to the FISA court, which has issued a rebuke of the abuses.
On March 4, FISA Judge James Boasberg blasted the FBI’s shoddy work in response to the Horowitz report: “The OIG found that those applications contained significant factual inaccuracies and omissions relevant to whether there as probable cause to believe Page was an agent of the Russian government. There is thus little doubt that the government breached its duty of candor to the Court with respect to those applications.”
So, the Justice Department withheld the exculpatory information from the FISA court, and Comey lied to President Trump — who knew he was innocent all along — about the extent of the investigation, leading to his firing and the appointment of Special Counsel Mueller.
After former Attorney General Jeff Sessions’ recusal and the Comey firing, Mueller in turn kept the investigation into Trump, his campaign and administration going for another two years — even though he should have known at the outset that Steele’s source had folded — bringing up George Papadopoulos, Roger Stone and Michael Flynn up on process crimes, and Paul Manafort on unrelated financial and tax crimes.
Mueller turned in his final report in 2017, clearing Trump and his campaign of being Russian agents, but conveniently leaving out the fact that the Justice Department as early as Jan. 2017, before Trump was even sworn into office, had serious reasons to doubt the allegations against Trump and his campaign. He left it to Horowitz to bring that to the American people’s attention.
Per Mueller, “the Office did not find evidence likely to prove beyond a reasonable doubt that Campaign officials such as Paul Manafort, George Papadopoulos, and Carter Page acted as agents of the Russian government — or at its direction, control or request — during the relevant time period.” As for Michael Cohen, per Mueller, “Cohen had never traveled to Prague…” even though Steele had Cohen supposedly in Czech Republic in the summer of 2016 meeting with Russian agents.
Mueller added, “the evidence was not sufficient to charge that any member of the Trump Campaign conspired or coordinated with representatives of the Russian government to interfere in the 2016 election.”
Steele had his own doubts, including that the information he gathered might have been Russian disinformation. In court testimony, Steele said “all material contained this risk” of being disinformation. Further, Steele didn’t go to Russia himself, and was said to have relied on a network to relay information, stating that the allegations needed to be “further corroborated and verified.”
Steele said his sources were Russian, but they were not named: Source A was a “former top Russian intelligence officer”; Source B was a “senior Russian Foreign Ministry figure”; Source C was a “senior Russian financial official”; Source D was a “close associate of Trump” (golden showers source); Source E was an “ethnic Russian close associate” of Trump (golden showers source); Source F was a “female staffer of the hotel”; and source G was a “senior Kremlin official”.
Now we know based on Horowitz that Steele did not have direct contact with the individuals mentioned in his dossier. He heard it from sources who had it from sources who had it from sources. It was worse than hearsay.
Per Horowitz, “the Primary Sub-source felt that the tenor of Steele’s reports was far more ‘conclusive’ than was justified. The Primary Subsource also stated that he/she never expected Steele to put the Primary Subsource’s statements in reports or present them as facts. According to WFO Agent 1, the Primary Sub-source said he/ she made it clear to Steele that he/she had no proof to support the statements from his/her sub-sources and that ‘it was just talk.’”
Additionally, according to Horowitz, “the Primary Sub-source explained that his/her information came from ‘word of mouth and hearsay;’ ‘conversation that [he/she] had with friends over beers;’ and that some of the information, such as allegations about Trump’s sexual activities, were statements he/she heard made in ‘jest.’ The Primary Sub-source also told WFO Agent 1 that he/she believed that the other sub-sources exaggerated their access to information and the relevance of that information to his/her requests. The Primary Sub-source told WFO Agent 1 that he/she ‘takes what [sub-sources] tell [him/ her] with ‘a grain of salt.’’”
And even after the exculpatory information was widely known in the Department’s top leadership, the Department conspired to conceal that information from the FISA Court. Per Horowitz: “the second and third renewal applications provided no substantive information concerning the Primary Sub-source’s interview,” when the key witness on behalf of the government of at this point criminal wrongdoing was directly contradicting the facts the government was purporting in a court of law.
Renewal of FISA provides a little bit of leverage for reformers to attempt to put in place rules that can prevent this sort of thing from happening again. This bill does not go far enough, and so the Senate should take its time with it and bolster it. This is not what the Fourth Amendment was supposed to mean. Clearly, political institutions like campaigns need additional protections from ridiculous accusations of being foreign agents. If that means another temporary reauthorization or no reauthorization at all, so be it.
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Robert Romano is the Vice President of Public Policy at Americans for Limited Government.