Inspector General's Report On Investigation Of Trump Campaign Finds More FISA-Related Abuse By The FBI

Legal Issues

from the and-if-the-FBI-does-this-to-the-big-people,-imagine-what-it-does-to-the-little-p dept

The Inspector General’s report [PDF] on the FBI’s investigation into Russia’s connection to the Trump election campaign has been released. In the 480-page report, there’s enough to satisfy both sides of the argument. Those who believe the investigation was never politically-driven will have their hunches confirmed. Those that believe there’s a concerted Deep State effort targeting Trump will find just enough in it to affirm those beliefs as well.

The Inspector General behind the report, Michael Horowitz, has never been afraid of calling bullshit on the numerous agencies he oversees. These agencies, on the other hand, do everything they can to thwart his investigations, so if anything crucial seems to be missing from this report, you can probably blame the FBI.

The report clears the FBI of any wrongdoing, at least as far as the “politically-driven” allegations. The IG concluded the FBI did things badly, but did not do them for anti-Trump reasons.

That being said, the more disturbing aspects of the report deal with the FISA court and the FBI’s casual abuse of its surveillance authorities. Not much is known about the FBI’s domestic surveillance efforts — at least not those authorized by the Foreign Intelligence Surveillance Act. While the FBI routinely performs “backdoor” searches of domestic communications harvested by the NSA’s foreign-facing surveillance efforts, we have yet to see an actual FISA affidavit from the FBI.

The affidavits reviewed by IG Horowitz involved the surveillance of Carter Page, hat-wearer and foreign policy advisor for the Trump campaign. The super-secret process has rarely been this closely examined before. What it shows is the FBI playing fast and loose with its surveillance powers. Here’s Charlie Savage’s take for the New York Times:

[T]he inspector general found major errors, material omissions and unsupported statements about Mr. Page in the materials that went to the court. F.B.I. agents cherry-picked the evidence, telling the Justice Department information that made Mr. Page look suspicious and omitting material that cut the other way, and the department passed that misleading portrait onto the court.

Here’s what the report says:

Our review found that FBI personnel fell far short of the requirement in FBI policy that they ensure that all factual statements in a FISA application are “scrupulously accurate.” We identified multiple instances in which factual assertions relied upon in the first FISA application were inaccurate, incomplete, or unsupported by appropriate documentation, based upon information the FBI had in its possession at the time the application was filed.

The FBI was so interested in keeping Carter Page under surveillance that it manipulated the facts it had to better fit the actions it wanted to take. In the FBI’s initial wiretap application, the agency cherry-picked info from informants to find anything that might possibly suggest Carter Page was the connective tissue between Donald Trump and the twice-convicted Paul Manafort. When it came time for the wiretap renewal, the FBI chose to withhold new information that contradicted some of the original probable cause it had supplied to the FISA court on its first application.

This is just the FBI adding onto its not-so-proud tradition of misleading the FISA court. As far back as 2002, the FISA court was already complaining about the FBI’s “inaccurate affidavits.” Not much seems to have changed. If this report is any indication of the FBI’s general approach to submitting affidavits, agents are massaging weak correlations into something approaching probable cause and continuing this abusive editing process for every renewal. The procedures introduced following the FISA court’s 2002 criticism don’t appear to be having much of an effect.

The FBI will get yet another chance to start acting like a trustworthy government agency. More pressure is being placed on it from its oversight. The Inspector General’s office says another audit is underway — this time to determine just how often the FBI fudges facts on FISA applications.

Given the extensive compliance failures we identified in this review, we believe that additional OIG oversight work is required to assess the FBI’s compliance with Department and FBI FISA-related policies that seek to protect the civil liberties of U.S. persons. Accordingly, we have today initiated an OIG audit that will further examine the FBI’s compliance with the Woods Procedures in FISA applications that target U.S. persons in both counterintelligence and counterterrorism investigations.

These findings will be of considerable public interest, but given how much secrecy surrounds FISA court proceedings, it’s unclear when, or if, we’ll ever see this report. So far, nothing seems to be making the FBI handle its considerable power more responsibly. The FISA court isn’t adversarial. Few people criminally charged as the result of FISA-ordained surveillance have the opportunity to challenge this evidence in court. The worst thing that can happen to the FBI is periodic benchslaps by FISA judges. And the opinions and orders containing these benchslaps generally aren’t cleared for public consumption until years after the fact. That’s not much of a deterrent.

There’s a Deep State problem out there, but it’s not politically-motivated. It’s not the FBI vs. politicians it doesn’t like. It’s the FBI vs. Americans it wants to place under surveillance via a court supposedly interested in the gathering of foreign intelligence. Ordinary domestic surveillance produces paper trails that must be turned over in trial courts. FISA surveillance does not, which is why the FBI loves having this option.

Filed Under: 4th amendment, fbi, fisa, fisa court, fisa warrants, fisc, inspector general, oversight, surveillance