Rivkin & Casey on the Threat of FISA Abuses

Over the years I have enjoyed reading and--I like to think--have learned a good deal from the articles by David B. Rivkin Jr. and  Lee A. Casey, which appear regularly on the Op-Ed pages of the WSJ. So it was with disappointment that I read their brief article today: FISA Abuses Are a Special Threat to Privacy and Due Process: The standard for obtaining an intelligence surveillance warrant is lower than that in a criminal investigation.

Rivkin and Casey are unquestionably correct that FISA (Foreign Intelligence Surveillance Act) abuse poses a special threat to privacy and due process--the privacy aspect has become all the more chilling as the extent to which we live our lives in ways that are readily accessible by electronic means of surveillance has increased exponentially. Consider: when FISA was first passed into law, there were no cell phones, no internet. As we are now learning, however, an even greater threat perhaps is posed by the weaponisation of the Executive Branch departments and their agencies against their political opponents and critics, using the facilities made available through FISA. Much of this new awareness has focused on the FISA warrant that was obtained by the FBI to target Carter Page, a low level adviser to the Trump Campaign for a few months in 2016. The concern, beyond the targeting of Mr. Page, is that the FISA warrant was then leveraged to broadly target virtually anyone who had been in contact with Mr. Page.

As is apparent from the title, Rivkin and Casey lay much of the blame for the abuse in this case on the legal standard for obtaining a FISA warrant. I say "much of the blame" because they also blame, and rightly so, the officials of the Executive Branch (DoJ and FBI) who withheld critical information from the FISA Court (FISC). Both of these contentions are, however, misguided: the first in whole and the second in significant part.


As with any warrant, the standard used to obtain a FISA warrant is that of "probable cause" to believe a certain set of facts that have a legal significance. Here is how Rivkin and Casey explain the difference between warrants used in criminal cases and the FISA warrants that are used in counterintelligence cases (they are also used in cases of sabotage and international terrorism, but the Page case was a counterintelligence case):

Because the purpose of counterintelligence is to gather information, not necessarily to prosecute criminals, the standards required for issuance of a FISA order are less demanding than those governing warrant requests in criminal cases. In both contexts a finding of “probable cause” is required. But an application for a criminal warrant must show, among other things, that “there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense” under federal law. Under FISA, it’s enough to show probable cause that the targeted U.S. person’s “activities may involve a violation of the criminal statutes of the United States” (emphasis ours).

This difference is subtle but crucial. The FISA standard is far easier to meet ...

I have no doubt of Rivkin and Casey's good faith, but their quote of FISA leaves out a crucial condition. Here is the full wording of section 50 U.S. Code § 1801(b)(2)(A) which they quote (please note that use of the term "any person" in this section indicates that US Persons are specifically included):

50 U.S. Code § 1801 - Definitions
(b) “Agent of a foreign power” means—
(2) any person who—
(A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;

When the "may involve" is read in the light of the first clause--which specifies that the probable cause for a warrant includes probable cause to believe that the "person" is knowingly engaged in clandestine intelligence gathering activities for or on behalf of a foreign power--we can see that this standard is not an "easy" one to meet. By its very nature, clandestine activity is activity that is designed to be hidden and difficult to discover. When it is supported by a "foreign power"--and in the Page case we're dealing with Russia, a foreign power with a long history of proficiency in clandestine tradecraft--the challenge for counterintelligence agents is all the more difficult.

Evidence that the FBI, the lead counterintelligence agency for the US, is well aware of this standard is amply apparent from a training document on how to obtain a FISA warrant that is available online. The document, What do I have to do to get a FISA warrant? (also referred to as the "FISA recipe") was produced by the FBI's National Security Law Unit and, for our purposes, states very clearly (we can assume that it is easy enough to present probable cause that Russia is a "foreign power"):

... Probable Cause to Believe What?

... If a US person is alleged to be acting on behalf of a foreign entity, the court must first find probable cause to believe that that entity is a "foreign power," as defined in subsection 101(a). There must also be probable cause to believe that the person is acting "for or on behalf of" that foreign power, as well as probable cause to believe that the efforts undertaken by the target on behalf of the foreign power constitute ... clandestine intelligence activities.

I think anyone can see from this that the showing to the FISC will need to include some very specific facts: facts that show probable cause to believe that the US person (here, Carter Page) is acting for or on behalf of Russia--which indicates an agency relationship--and also that the US Persons efforts on behalf of Russia "constitute ... clandestine intelligence activities." I submit that this is not nearly so easy as Rivkin and Casey believe it is. Which brings us to the second part of their contention: Who is to blame for this FISA abuse?

Let's dispose of the easy part first. Was the FBI at fault for withholding crucial facts--such as the political origins of the "dossier" on which the FBI was relying and the uncorroborated nature of the "information"? Absolutely. Every approving official who signed off on the warrant application was certifying that good faith efforts had in fact been made to ensure that the allegations being presented to the FISC were true to the best of their knowledge. Clearly that was, at best, a misrepresentation but more than likely--at least for some of the individuals involved--a knowing falsehood, a fraud on the FISC. These officials, and former officials, could well be facing actual jail time.

However, the judges on the FISC, as on any court, are not discharging their own serious responsibilities if they do no more than rely on the representations made by government officials. They have their own duty to safeguard the integrity of the process. In a recent blog, The Schiff Memo and the Scandal of FISAGATE, I presented Congressman Schiff's defense of the FBI's (and DoJ's) abuse of the FISA process. In his now well known memo, Congressman Schiff claims that the application for a FISA warrant satisfies the requirements that we've set out above. Contrary to his contentions, I think that any disinterested examination of what was presented to the FISC (we don't have the actual application, but we assume that Congressman Schiff is putting the best face on the matter) can only lead to the conclusion that the application doesn't come close to establishing the required probable cause.

We can break this down into a few general categories.

First, the FBI is said to have had an independent basis for investigating Page and his relationship with Russians (some of whom included intelligence officers) dating back to 2013. As we have seen, however, if this was in fact presented in these terms to the FISC, this is a very serious misrepresentation, for several reasons. In Schiff's account, there is no indication of a showing that an agency relationship had been established between Page and the Russians; nor that Page had engaged in clandestine intelligence activity "for or on behalf of" Russia. Further, there seems to have been no showing that there was continuity of action from 2013 to 2016 when the application for the warrant was submitted. Without such a showing the information might very well be considered "stale." But by far the most important factor that seems to have been withheld from the FISC is that during the activity referred to in 2013 Page was in fact officially acting "for or on behalf of" the FBI against the Russians, and he continued in that relationship up until about March of 2016. And the Russians had every reason to know this, because of court filings that described the actions of a US Person whom we now know was Page.

Second, Schiff describes "suspicious activities" on the part of Page. Page traveled to Moscow. Page gave a commencement address. Page (according to the "dossier") met a Russian who was under US sanctions. None of this was clandestine, nor was it intelligence activity absent additional facts that the FISC would have had reason to accept.

Third, Schiff presents the claim that Russian actions toward Schiff were typical of the way the Russian intelligence services attempt to cultivate and "recruit" agents. This may or may not have been the case, but none of it involves "clandestine intelligence activity" on the part of Page. Such information might be relevant to assessing whether the Russians involved in this activity were themselves intelligence officers, but it has nothing to do with whether Page was an agent of Russia, was acting for or on behalf of Russia, and as part of "acting for or on behalf of Russia" was engaged in clandestine intelligence activity.

As I've already indicated, the US government officials who put together and then submitted this farrago of misrepresentations and outright nonsense to the FISC should be facing a serious day of reckoning for their actions. However, that doesn't absolve the four FISC judges, because unless the misrepresentations that Congressman Schiff presented to the public in memo went far further than what we have seen, none of this came close to meeting the probable cause standard set out in FISA. And that should have been readily apparent to those four judges. The bottom line is that standards are all fine and good, but they are effective only if they're applied. In this case they clearly were not.

There are constitutional questions regarding the entire FISA regimen. I won't go into them, but they were recognized by Congress and an attempt was at least made to take those reservations into account when FISA was passed. That said, the legal standards incorporated in FISA appear reasonable and are not part of a rubber stamp process of approval. The true problem at this point appears to be one of ensuring adequate oversight and review not only of the Executive Branch agencies but also of the actions of a court that operates in secret, so that the American people can be confident that the applicable standards really are being adhered to.