Wednesday, July 25, 2018

What The Carter Page Case Tells Us About The Flaws In FISA

Since the release this past Saturday of the (highly redacted) FISA application that targeted Carter Page, with the subsequent three renewal applications, there has been no lack of analysis of the unredacted details (Mark Penn's analysis is, for my money, one of the most cogent). In what follows I intend to take more of a "big picture" approach, as well as focusing on issues that haven't received a great deal of attention but may in the future.

One aspect of the application that came as no surprise to all who have followed this FISAGATE affair is that the role of the "dossier"--the collaborative effort produced by the British ex-spook Christopher Steele, Fusion GPS (Glenn Simpson, Nellie Ohr, and possibly others), and the Hillary campaign--is everywhere apparent. While the central role of the dossier comes as no surprise--after all, Andrew McCabe, the FBI's disgraced former Deputy Director and (during the Comey - Wray interregnum) Acting Director testified to the House that the dossier was "crucial" to the FISA--the overall audacity exhibited in the application is breathtaking.

The dossier itself is in the nature of a Big Lie--sensational, lacking in documented sourcing, utterly unverified and unverifiable. To present the contents of such a document (really a collection of memos) to any court as fact is audacious enough in itself. However, the authors of the application took two remarkable steps to support the Big Lie of the dossier.

First, they used the record of Page's three years of cooperation with the FBI as an FBI informant in New York to support the contention that Page was an Agent of a Foreign Power who was knowingly engaged in clandestine intelligence activity that might have involved the violation of criminal statues of the United States (cf. (b)(2)(A)(B) at the above link). That is audacious.

The second way the authors of the application sought to support the Big Lie of the dossier was to cite tendentious opinion articles in US publications to support the idea that the Trump campaign was working "behind the scenes" to shape its Russia policies in such a way as to conform to the desires of the Putin regime--attributing this, on no stated evidence, to the supposed influence of Carter Page. At least one of these articles was sourced to Christopher Steele, although that fact appears not to have been revealed to the FISA Court (FISC). Again, this is a remarkable degree of audacity.

But what about the four separate judges who signed off on either the original application or the several renewal applications? Do they not have some responsibility for this really shocking abuse of the FISA regime--a regime that was designed to safeguard the Fourth Amendment rights of US citizens? Should they not have subjected the applications to searching scrutiny and questioned what appear to be obvious flaws? To his very great credit, Andy McCarthy of NRO raised precisely this issue in his Fox News interview.

The problem lies, I believe, in the very nature of the FISA regime. The Foreign Intelligence Surveillance Act of 1978 was intended to provide for oversight of the Government's surveillance activity, physical and electronic, to prevent perceived abuses of Government powers in the name of national security--while allowing for necessary secrecy. The act itself was largely written in collaboration between Congress and the Justice Department. The result was remarkable, not to say unprecedented. What FISA did, in effect, by creating the "FISA Court" (FISC) to pass on applications for surveillance, was to transform Article III judges into Government bureaucrats for purposes of FISA. Here's what I mean.

Under Article III of the Constitution, the "judicial power" is to be used to decide cases and controversies--which, in our system, are conducted in adversarial proceedings: all parties to a dispute get to present their point of view in open court. But under the FISA regime there is no case or controversy, nor is a FISC judge's role that of a devil's advocate. The judge hears only the Government's side of things, exercising a minsterial function rather than a true judicial function. The Government's representatives, on the other hand, are not only advocates but, by the very nature of their official duties, they are before the FISC as subject matter experts in their own right.

The inevitable result is that the judges who serve on the FISC may exhibit some or all of the ordinary human weaknesses that the adversarial system is designed to guard against. A judge may lack the necessary knowledge to truly understand what's being placed before him/her, may exhibit undue deference to the Government "experts," may even be biased against the target or have a tendency to go along to get along. But since there is no true case or controversy presented to the FISC and there is only a limited possibility for appeal--only if a decision should go against the Government can there be an appeal, since the target of the FISA warrant is not represented before the FISC-- as long as the judge sides with the Government no one will be the wiser. As long as the FISC judge issues the warrant, no one will complain, no one will appeal, there will be no real oversight of the "court's" decisions. Humanly speaking, this is a system that was ripe for politically motivated exploitation--only the principled actions of Admiral Mike Rogers at NSA saved the day.

In saying this I have no intention of impugning the overall integrity of Federal judges. I simply offer what should be a non-controversial observation, that judges are human, too, and when the safeguards of the adversarial system and the appelate process are effectively removed, their human weaknesses may be exploited. A simple example will perhaps suffice.

The Carter Page FISA application, drawing on the dossier, states that Carter Page had "secret" meetings with Russians whom the US Government regards as bad guys. To most people that may appear to be an unremarkable statement, one not requiring challenge. But recall--under FISA for a US Person (USPER) to be classified as an "agent of a foreign power" that USPER must be shown to engage in clandestine intelligence activity for or on behalf of a foreign power, and that activity must at least possibly involve violations of US criminal statutes. So, what's a "secret meeting"? As opposed, for example, to a merely "private" meeting? Is any meeting not conducted on a street corner a "secret" meeting? Does a "private" meeting become a "secret" meeting simply because the Government disapproves of the person you're meeting? Should we reasonably expect a FISC judge to pounce on these ambiguities, or is it more likely that he'll miss them?

For me, with over twenty years of counterintelligence experience, a "secret" meeting would be a meeting that a person attempts to conceal from the knowledge of others. So, for example, we might ask whether the person in question took measures to detect or elude surveillance by intelligence services--yes, the US does maintain intelligence personnel in Moscow. If he did, then we might plausibly argue to the FISC that the meeting was a "secret" meeting. But that's not what we see in this FISA application. Without the support of facts such as I've just laid out, the statement that Carter Page engaged in "secret" meetings is merely tendentious and prejudicial. This is a built in danger for FISC proceedings.

And there are more examples of the way in which the application plays on the probable mindset of most judges. Take the way in which the FBI attempts to bolster the credibility of Steele by stating that Steele's "reporting has been corroborated and used in criminal proceedings." This is an obvious reference to the FIFA case. The idea that a source's reporting has been deemed reliable enough for use in a criminal proceeding is highly likely to impress most judges. Left unmentioned, however, is that the FIFA case was a very different matter from an attempt to influence a US presidential election, or that the ability to correctly assess whether FIFA is subject to corrupt influences does not necessarily parlay into the ability to read the Kremlin's game plan for the 2016 election. Further left unmentioned is the fact that Steele, in 2016, hadn't been in Russia for 20 years and that his prior "expertise" had been in commercial matters, not political influence matters. All these considerations might well work against his purported reliability or the reliability of his "subsources" in the matter before the FISC--the Carter Page FISA application. But the vague reference to "criminal proceedings" leaves real questions unanswered: how important was Steele's "research" in those proceedings, etc. It appears to have been a ploy to impress rather than enlighten the FISC.

Am I being too hard on the FBI? Consider: the NSA audit of "702" searches that was presented to the Chief Judge of the FISC revealed that 85% of the searches were unauthorized and almost certainly were undertaken to ultimately benefit the Hillary Clinton campaign and to undermine the Trump campaign. That particular abuse can't be laid at the door of the FISC, but clearly if this eye opening level of abuse occurred in one aspect of the FISA regime we shouldn't be surprised if the FBI were to play fast and loose when presenting "facts" to the FISC.

From the growing outcry over these revelations, it seems likely that the public will not be satisfied with the heavily redacted version of the application that we now have. Demands for more transparency will likely grow, and that can only lead to an overdue and healthy public discussion of the serious issues--both for national security as well as private privacy--that are involved in FISA. Interestingly, in an interview with Hugh Hewitt, Devin Nunes back in February, Rep. Nunes stated that "we" (presumably the House Intelligence Committee) had been "grappling" with the idea of seeking to involve Chief Justice of the US Supreme Court, John Roberts, in a discussion of some of the issues involved in FISA. In my understanding CJ Roberts doesn't exactly supervise the FISC, but he does appoint the FISC judges and would be logical source for advice on the operation--and even the nature--of the FISC. There are complex constitutional problems involved in all this, not least because of the anomolous nature of the FISC, but I have to believe that such a development would be a healthy one.

ADDENDUM: Since writing the above, on Monday, I've become aware that Judge Robert Bork--way back in March, 1978--wrote an article for the WSJ in which he expressed serious reservations about the very nature of the court envisioned by FISA, which was then being pushed through Congress: 'Reforming' Foreign Intelligence. Bork's views have been referenced twice by William McGurn in the WSJ, most recently on 7/23/18, Abolish the FISA Court, and previously on 3/6/17, Robert Bork and the FISA Follies. Here is a sampling of Bork's views on the proposed FISC, which appear in light of developments to have been quite prescient. The entire article is well worth the read:

Re the role of FISC judges:

"The job is managerial, not judicial, and the two should not be mixed."

"judges cannot become adequately informed about intelligence to make the sophisticated judgments required."

"The element of judicial secrecy is particularly troubling. Because it reverses our entire tradition, it is difficult to think of secret decisions as 'law' ... it would set apart a group of judges who must operate largely in the dark and create rules known only to themselves. ... it debases an important idea to term it the rule of law ..."

“the law would almost certainly increase unauthorized disclosures of sensitive information simply by greatly widening the circle of people with access to it.”

“When an attorney general must decide for himself, without shield of a warrant, whether to authorize surveillance, and must accept the consequences if things go wrong, there is likely to be more care taken. The statute, however, has the effect of immunizing everyone, and sooner or later that fact will be taken advantage of.”


  1. What is missing is an advocate for the target. The FISC, in my opinion, needs an opponent to challenge the warrant applications themselves in front of the judge. I realize it was meant that the judges be this advocate by holding the DoJ to strict standards, but I don't think any of these applications were actually read by the judges signing the approvals. Outside of FISA, a target will usually get a chance, with legal representation, to challenge any warrants issued against him- that is the check and the balance, but with the FISC, it often will never be there. Page would only get to challenge this warrant if he is ever brought to trial using information derived from it- why I suspect that he will never be charged, and also why I suspect the FBI never believed the assertions they made against him- the target was always Donald Trump, and there it isn't criminal prosecution they were looking for, but impeachment and damaging leaks. That is the reason for the audacity- they never expected to have to defend what they did before the public.

  2. If I may presume to present what I take to be Bork's position, Bork would respond (as he did) that this would simply expand the circle of knowledge even further and lead to even more leaks of sensitive information. If he were confronted with the facts of the Carter Page case he might point out that one way to understand what happened is that the FISA regime was used as a prop. Which I take it is exactly what you're saying. The Page FISA wasn't really obtained in order to discover the truth about Trump/Russia: the insiders like Strzok and Simpson already knew that there was "no there there." The point was to be able to leak veiled claims of investigations and their progress as a vehicle for further leaks. If leakable political intel was discovered, so much the better. But, as we've seen, under the FISA regime it becomes very difficult to assign specific responsibility--all the executive branch players (and, Bork would point out, there are far too many players) end up pointing to the FISC for cover. So, Bork would argue, by removing the FISA regime entirely, you achieve two things: 1) clear lines of responsibility, and 2) a real threat of sanctions for misconduct. In that last regard, Bork does point out that there were already very detailed regulations in place regarding "wiretapping" of US Persons. So, for example, Bork might argue that when NSA discovered that 85% of FBI 702 searches were "unauthorized" the existence of the FISA regime actually delayed effective disciplinary action--such action could have taken expeditiously without FISA and the threat of such action might actually have deterred the miscreants in the first place.

    The recent Carpenter decision, especially the dissents by Thomas and Gorsuch, is interesting to read from this perspective. Here's a piece at Lawfareblog discussing that: Carpenter’s Implications for Foreign Intelligence Surveillance. Note that all the interested parties, unlike Bork, discuss these issues from within the Fourth Amendment whereas Bork adopts a stance rooted in separation of powers. Nevertheless, the very fact that such dissents as those of Thomas and Gorsuch were written is, I think, a strong indication that the SCOTUS recognizes that the ideas of privacy on which FISA rests are increasingly disfunctional and a return to property concepts would be better. Another interesting question is whether the chief judge of the FISC may have consulted with CJ Roberts re the NSA report and the release of the FISC opinion.

    All in all, Bork's arguments, while seeming counterintuitive to those of us who "grew up" under the presumptions of FISA, have a real power to them. Certainly they cannot be lightly dismissed.

  3. What I would really like to see are the FISA warrants in this case that were denied- assuming the stories about them are actually true, which hasn't been demonstrated to me yet.

    Bork's arguments about this were quite good and prescient, and it is quite possible my argument for a standing, assigned advocate would simply be corrupted, too (probably would be)- I can definitely see a FISA judge passing the buck to the advocates in a clear case of abuse. It may well be the only solution is to change the law that US person cannot be surveiled by FISA warrants, but must go through the regular process at the very moment that person becomes known within an investigation- all evidence collected outside of this is verboten for any type of prosecution.

  4. Agreed, Yancey. We've heard quite a few times re a FISA application that named Trump but was rejected--variously in June, mid Summer, or late Summer of 2016--but nobody seems to know much about that application. If, as you say, it was for real and not confused with something else--although the reporting on that is from sources that wouldn't ordinarily be fundamentally mistaken. Additionaly, there are grounds to believe that there was a FISA on Manafort and possibly Flynn at some point. The FISA on Manafort appears to be fact. I'd very much like to know more about all this.

    In the version of this blog that ran on American Thinker a few commenters took issue with my statement that there are complex constitutional issues involved. There are, in fact, but the FISA regime has obscured some of that. Bork begins from the constitutional principle that the President is the chief executive and commander in chief and that his most fundamental duty is national security. The SCOTUS has always recognized the lawfulness of national security surveillance without a warrant. This only began to change with the Katz decision in 1967, but even Katz and following cases recognized that national security surveillance had to be viewed separately from typical law enforcement cases and required greater flexibility. The difference that Katz brought was that these issues were viewed through the lens of a so-called "right to privacy"--a heretofore unheard of concept. Previously the concept of "property rights" under the 4th amendment had controlled (cf. Black's strong dissent in Katz). This is what's behind Bork's objections to FISA, as also those of Thomas and Gorsuch (without mentioning FISA specifically).

    I fully understand and sympathize with the objection to warrantless government "snooping"--if nothing else this present case shows that the dangers to our polity are very real and are heightened by tech advances. Still, the issue is how to best address this problem. I'll admit that I initially was skeptical of returning to the "property rights" standard, but I'm persuaded that--ironically, perhaps--it may offer greater flexibility than the vaguer "right to privacy." Certainly Gorsuch makes a persuasive case.

  5. Yancey, in line with what I was saying re the line of SCOTUS decisions, it may interest you to know that Congress--recognizing the consistency of court decisions re national security as different from law enforcement--wrote an exception into FISA that allows for warrantless surveillance in national security circumstances: 50 U.S. Code § 1802 - Electronic surveillance authorization without court order ...:

    (1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—


    In fact, this provision came very much into play following 9/11, and in particular re the very much enhanced capabilities of NSA. That's what the controversy about the unauthorized access to 702 material by the FBI re the Trump campaign refers to. That was never actually envisioned when FISA was first written, but the Bush admin used that authority very aggressively, which led to the 2008 and 2015 revisions of FISA. Which the FBI apparently systematically disregarded. That's part of what makes the Bork article so interesting to me, and what makes the article so prescient IMO.

  6. I said "Which the FBI apparently systematically disregarded," but what I really meant was, "which the Obama administration systematically disregarded." I don't believe for a second that the FBI would have acted as it did without an understanding that this was what was desired of them.

    This 702 stuff also pertains to the "unmasking" business, which we hear so little about. All these abuses that Bork foresaw.