UPDATED: More On OIG's Report On Problems In The FBI's Confidential Human Source Program

Yesterday we took a look at how OIG's reports on various aspects of the Russia Hoax will likely end up both supporting one another as well supporting certain aspects of the Durham investigation (OIG's Interlocking Reports). In doing so we quoted extensively from Brian Cates' fine article. Today Margot Cleveland has an excellent analysis of the same OIG report on problem within the FBI's CHS program. I recommend the entire article: Blockbusters Buried In The IG Report On FBI Misuse Of Confidential Sources (h/t Cassander), which is eye opening. However, I want to add a bit of a caveat.

The Russia Hoax involves the world of foreign intelligence collection and of counterintelligence. The agencies involved in this work gather information in various ways, but the use of confidential human sources remains, even in this day of sophisticated electronic data gathering, remains an essential part of that process. Essential, yet problematic. Evaluating the human motives of a CHS is always difficult at best, and even an evaluation of their reliability can be problematic. It's as complex as human nature and the human personality. Conclusions regarding a CHS can and should never be final, yet workers in the intel world are human, too. A source who lies in one situation may be truthful in another--nothing is simple. The dangers of being too trusting in a long term source who tells you what you want to hear, or of distrusting a source for various reasons--including being the bearer of bad news--are always factors to be borne in mind. Bureaucratic rules and guidelines, while necessary, will never be able to cover all situations and subjective considerations cannot be eliminated.

Here's what I'm leading up to. One aspect of the OIG report that Cleveland singles out is this:

Exempting Sources Like Steele from Routine Validation

A third important point gleaned from last week’s IG report on confidential human sources concerns the attorney general guidelines’ requirement that all long-term sources receive an enhanced validation every five years, except “those CHSs providing information for use in national security investigations or foreign intelligence collections.”

So, under the guidelines, while the FBI must seek and obtain the approval of the Human Source Review Committee (HSRC) every five years for most confidential sources, individuals, such as Steele, who feed the FBI unverified information from supposed foreign-intelligence collections are exempt. Not that a HSRC review would likely matter, in any event, since the HSRC must rely on the Annual Validation Reports and other relevant FBI documentation which, as the IG report revealed, intentionally omits negative information about CHSs.

Note that Cleveland rightly points out that the fact that the AG Guidelines do not require that a CHS used in "national security investigations or foreign intelligence collections" be subject to "an enhanced validation every five years" is, from one point of view, irrelevant. That point of view is the fact that OIG documented that the FBI "intentionally omits" documenting negative information about confidential human sources. (See the article for more on that.) Apart from other considerations, Cleveland again rightly cites OIG's concerns that the failure to document such negative information can adversely affect not only investigations but even, potentially, agent safety.


My caveat is that, while full documentation is important, we should not get too hung up on those considerations at this point. Cleveland regards this national security exemption as "important." It may or may not be, but the important point is that--as far as the FISA order against Carter Page is concerned--shortcomings in the FBI's CHS program probably played no role at all.

The reality is that human sources who are used in intelligence investigations (leaving counter terror matters aside) are rarely called upon to testify in court and their information is rarely needed in order to obtain a FISA order against a US person, such as Carter Page. Cleveland quotes Andy McCarthy in that regard, to illustrate why that would be the case in the Russia Hoax:

In applying for a warrant, the government must establish the reliability of the informants who witnessed the alleged facts claimed to support a probable-cause finding. Steele was not one of those witnesses. He is not the source of the facts. He is the purveyor of the sources — anonymous Russians, much of whose alleged information is based on hearsay, sometimes multiple steps removed from direct knowledge.

In an ordinary case, the FBI would almost certainly be able to develop independent corroboration for the claims that Carter Page was a Russian agent. In this case there was no such corroboration. The FISC basically trusted the FBI's representations--unwisely, as it turned out. And, of course, the perpetrators of this fraud understood and counted on that implicit trust. Even so, the FBI engaged in blatant subterfuges to fool the FISC into believing that there at least two independent sources of corroboration, when in fact those two supposedly independent sources were simply additional conduits for Steele's stories. And FBI lawyer even fabricated additional "evidence." And, of course, the FBI also withheld or concealed information that might have called into question Steele's trustworthiness. All this is criminal behavior, not administrative shortcomings.

My point is twofold.

The first point is that the only way to prevent this abuse from occurring again that would have much hope of success would be for Barr/Durham to pursue this investigation vigorously, to treat it with the seriousness that it demands, and to hold those responsible strictly to account. Not with "strong statements" but with prosecution and jail terms.

The second point is that this episode points out the flaws in the FISA regime. In the past I have several times quoted the late Robert Bork's view that FISA would inevitably lead to just these sorts of abuses and would make it difficult to hold the perpetrators to account (see here for links). I don't plan on holding my breath while waiting for fundamental changes to the FISA regime, and I don't recommend that anyone else should, either.

The one thing that could make some difference in the long term would be action on the part of the Chief Justice, who is the head of an independent branch of government and who appoints FISC judges and presumably exercises some sort of oversight. The first action I have in mind is fairly simple, and is illustrated by the quote from McCarthy. That action would be to demand that judges actually hold the FBI and DoJ to the standards set out in FISA. In the case of a FISA order targeting a US person that standard is one that all judges are familiar with: probable cause.

I have maintained at great length that any adequate examination of the Page FISA application would show that it did not meet the standards for probable cause that are normally applied in criminal cases. As McCarthy points out, the supposed facts presented to the court were largely--perhaps entirely--hearsay, "sometimes multiple steps removed from direct knowledge," and uncorroborated.

In addition, I suggest that the Chief Justice back that action up by demanding that the FBI personnel submitting the application should certify that they are aware of no relevant information that is not included in the application that could influence the FISC to question the trustworthiness of the information or the source of the information. Yes, lack of negative documentation in the case file could still be an issue, but consider--in the Russia Hoax all that has come to light after the fact, regardless of what may or may not have been included in the case file. A certification requirement as I've outlined it would not be foolproof, but it would present a threat of real consequences for anyone tempted to perpatrate a fraud on the FISC.

Action at this level, I believe, would be far more likely to prevent serious abuses than a focus on guidelines.

UPDATE: I want to recommend Adam Mills' article today at The Federalist: IG Report Shows FBI Has Lost Control Of Its Source Network. Mills writes from the perspective of a former prosecutor who was worked non-violent crimes. Not everything he says applies to the FBI, and especially not the the use of confidential human sources in national security cases. For example, he writes:

As noted by the report, “As of May 2019, nearly 20 percent of the FBI’s [confidential human source program] met its definition of a long-term CHS.” A “long term” relationship with a CHS (more than five years) begs the question as to why the FBI is spying on something that isn’t producing a case. These “long term” relationships have the greatest potential for corruption and inversion the way infamous Boston mob kingpin Whitey Bulger turned his own FBI handlers into unwitting business partners.

The warning in the last sentence is correct. However, in national security cases in which the goal is to prevent either harmful intelligence activity by a foreign power or a terrorist attack, revealing a source's identity in a prosecuted case may well be the least desirable outcome--a necessary evil. A long term relationship that results in prevention of harm over many years would be ideal. The differences in operating criminal v. national security sources isn't an apples and oranges things, but there are significant differences that need to be kept in mind.

With that caveat, the same strictures apply. Another danger is purely bureaucratic in nature. In the paragraph immediately preceding the one I just quoted, Mills writes:

The OIG questioned whether the number of invalid, even corrupted, relationships with CHSs might be much higher, noting that handlers prepare reports of their CHS that “lack any significant risk factors” and that “field offices may avoid validation review of the most risky CHSs, to ensure that they can continue using them.”

Or, simply in order to be able to keep those sources "on the books" as a measure of "effectiveness." This is absolutely typical behavior in any bureaucracy.

All in all, a good read. Just keep an open mind.