FISA Court Benchslaps FBI For Its Abuse Of The FISA Warrant Process During The Trump Campaign Investigation

from the FBI-finally-uses-up-all-of-its-unearned-trust dept

This didn't take long. The Inspector General's report on the FBI's Trump campaign investigation had nothing positive to say about the FBI other than it sucked at its job. Unbelievably, this was better than the IG saying the FBI performed its job in a biased fashion as part of a concerted Deep State effort to prevent Trump from taking office. (Or from staying in it, I guess, since the prevention plan obviously didn't work.)

But there was also an aspect of the FBI's investigation that should probably be chalked up to malice, rather than stupidity: the FISA warrant process. The FBI was so very determined to keep campaign advisor Carter Page under surveillance it cherry-picked statements from cooperators and buried everything that might have suggested Page was not actually involved in a Trump-Russia conspiracy.

The Inspector General said the FBI's FISA affidavit process was so full of failure, the office would be performin an audit of the FBI's FISA application processes and procedures. That's still in the works. Until then, there's the FISA court itself, which is incredibly peeved by these findings.

An order issued December 17 by FISA judge Rosemary Collyer was released publicly -- something the FISA court rarely does without allowing the IC to perform a few rounds of declassification vetting first. Charlie Savage of the New York Times was the first to report on the order [non-paywalled link here], but the order [PDF] does a pretty good job of speaking for itself.

The order opens by making it clear Judge Collyer is incredibly unhappy with the FBI's behavior, as uncovered by the IG's investigation.

This order responds to reports that personnel of the Federal Bureau of Investigation (FBI) provided false information to the National Security Division (NSD ) of the Department of Justice, and withheld material information from NSD which was detrimental to the FBI's case, in connection with four applications to the Foreign Intelligence Surveillance Court (FISC) for authority to conduct electronic surveillance of a U.S. citizen named Carter W. Page. When FBI personnel mislead NSD in the ways described above, they equally mislead the FISC.

After detailing the OIG's findings, the court delivers its message to the FBI.

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.

Oof. The FISA Court just said it no longer trusts the FBI.

To earn back this trust, the court has ordered it to deliver a sworn submission that outlines the agency's efforts to ensure every application going forward will not contain material omissions or otherwise untrustworthy statements. Better, the court orders the FBI to undergo an immediate review of the December 5th order (which demanded the FBI explain the statements [or omissions] made in the Page warrant affidavits) in preparation for it to be released to the public. The last sentence of the order makes it clear any attempts to subject this soon-to-be-declassified order to further convenient omissions won't be tolerated by the Court.

In view of the information released to the public in the OIG report, the Court expects that such review will entail minimal if any redactions.

How many times must the FISA court benchslap IC members for abusing processes and powers? At least once more apparently. It's refreshing to see the FBI called out for its misconduct, but the FISA court has been soundly and serially abused for years by multiple agencies who know the real benefit of a non-adversarial system is it minimizes the number of parties capable of calling bullshit.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community. Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis. While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: deception, fbi, fisa, fisa affidavit, fisa court, fisa warrants, fisc, lying, rosemary collyer