Lost among the headlines in recent days was an extremely important finding contained in the report by the inspector general of the Department of Justice regarding the way the FBI conducts foreign-intelligence investigations.
As reported, Michael Horowitz found that the FBI’s investigation into Russia’s 2016 election interference was not a witch hunt, as President Donald Trump so often claims. Instead, Horowitz concluded that the probe was properly authorized, and found no evidence that political bias or improper motivation influenced the decision to open the case. The investigation, known as “Crossfire Hurricane,” resulted in criminal charges against dozens of Russian nationals and intelligence officials.
But the report also contained a second significant point that should concern every American. The process for obtaining surveillance authorization from the Foreign Intelligence Surveillance Court fell far short of the high standards put in place to protect civil liberties. Horowitz identified 17 errors in the applications for a FISA warrant and three renewals authorizing surveillance of Trump campaign adviser Carter Page. The report noted “multiple instances” of factual assertions that were “inaccurate, incomplete, or unsupported by appropriate documentation.” As a result, FBI and DOJ decision-makers lacked all of the relevant information when they made decisions to support the FISA applications. While the IG did not conclude that the decisions of DOJ leaders or the FISA court would have been different with accurate information, they were entitled to know all of the facts.
In addition, a dossier of information prepared by former British intelligence officer Christopher Steele that served as a basis for the FISA applications turned out to have been partly inaccurate and improperly vetted. While the dossier was obtained after the case was opened and played no role in the decision to initiate the investigation, it played a “central and essential role” in the decision to seek a FISA order. FBI and DOJ lawyers said it was the Steele information that “pushed it over the line” for establishing probable cause.
These “serious performance failures” appear to be the result of some combination of sloppy paperwork, inattention to detail, and confirmation bias — but in once instance, Horowitz concluded that an FBI lawyer altered an email message that helped support renewal of the FISA application. A supervisory agent had wondered whether Page had served as a source for another U.S. intelligence agency, a potentially important fact when assessing the significance of Page’s meetings with Russians. In fact, Page had served as an “operational contact” for the agency, or someone who reports his contacts without being tasked. The FBI lawyer inserted the words “not a source” into the email message. While the statement may be literally true, the result was to create a false impression that Page had no relationship with the other agency. The report is silent as to whether the lawyer intended to mislead decision-makers, but it said that the matter has been referred for criminal investigation.
Altogether, the IG report paints a startling picture of a FISA process gone awry. FISA is a law that was passed 1978 in the wake of Watergate and abuses of wiretap authority in the name of national security. Before FISA, the executive branch conducted electronic surveillance of subjects for national-security purposes without any judicial oversight. FISA created a court to review classified warrant applications for surveillance in counterterrorism and counterintelligence cases. Unlike a traditional wiretap order or warrant in a criminal case, FISA applications require probable cause to believe that the target of the surveillance is an agent of foreign power.
FISA surveillance is considered one of the most sensitive investigative techniques used by government officials. It captures the content of telephone calls and text and email messages and even in-person conversations. As a result, the FBI requires that applications be “scrupulously accurate.” FISA applications must undergo review under what is known as “Woods Procedures,” which require verification of every factual assertion in the application. Agents must be able to document the source material for every statement in the affidavit.
If so many mistakes happened in a case of this magnitude and sensitivity, what is happening in every other FISA case? As Horowitz wrote, “That so many basic and fundamental errors were made by three separate, handpicked 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.” Can the FBI be trusted to use FISA if it fails to exercise proper care in even the most carefully watched case?
As a former prosecutor who handled national-security cases, I understand that we face serious and significant dangers. I see FISA as essential to detecting and disrupting those threats. For example, FISA was used in the case against Sheikh Omar Abdel-Rahman, also known as the Blind Sheikh, who was convicted of conspiracy to conduct bombings in New York City and solicitation to attack military installations in 1995. FISA was also used in a case against Najibullah Zazi, who was convicted in 2010 of planning to bomb the New York subway system, and Mohamed Osman Mohamud, convicted in 2013 of attempting to bomb a Christmas-tree lighting ceremony in Oregon. Former CIA officer Aldrich Ames, convicted of espionage in 1994, was the subject of FISA surveillance.
Horowitz made a number of recommendations in his report and announced that he will conduct an audit of the FISA system to determine how it is working across the board. To his credit, FBI Director Christopher Wray acknowledged the errors found by Horowitz and has vowed to correct them. He has recommended 40 measures that he plans to implement to improve training and oversight in the FBI.
Errors exist in every human endeavor, but the higher the stakes, the fewer mistakes we should expect. We need FISA to protect our national security, but FISA’s significant intrusion on civil liberties can be tolerated only if the errors are minimal. The FBI needs to demonstrate to the American people that it understands the seriousness of its lapses and that it is committed to fixing them.
