Andrew C. McCarthy
National Review, Oct. 2, 2021
“… despite its denials and misdirections, the FBI had materially relied on Steele dossier claims that it had failed to verify in submitting what it had the smarm to call “verified” applications to the Foreign Intelligence Surveillance Court.”
Justice Department inspector general Michael Horowitz has issued another report on the FBI’s egregious exercise of its national-security surveillance authority under FISA — the Foreign Intelligence Surveillance Act.
Let’s recap how we got here, recovering some of the history I laid out in March 2020 in arguing, as a longtime FISA critic, that the system should be ended, not mended.
The FBI performed disgracefully in targeting the Trump campaign as a clandestine agent of Russia based on gossamer suspicions. As I further detailed in Ball of Collusion, the flimsy evidence on which it relied was largely generated by the Clinton campaign, in particular the Steele dossier — a catalogue of substantially uncorroborated allegations of a Trump–Russia conspiracy, some key ones of which were easily proved false . . . or would have been if those pushing the case hadn’t found them too good to check. The dossier was amassed by Glenn Simpson, a cagey anti-Trump researcher at Fusion GPS, who sold himself to the Clinton campaign’s lawyers at Perkins Coie as a useful source, and then, to generate the “intelligence,” retained a kindred anti-Trump spirit, the loopy former British intelligence officer Christopher Steele.
It turned out that, despite its denials and misdirections (interspersed in a torrent of indignation about how investigating the Bureau’s FISA practices would end national security as we know it), the FBI had materially relied on Steele dossier claims that it had failed to verify in submitting what it (and the Justice Department) had the smarm to call “verified” applications to the Foreign Intelligence Surveillance Court (FISC).
These applications require top-tier FBI and DOJ approvals. Naturally, once the FISA controversy blew up, the brass at the Hoover Building and Main Justice bleated that a counterintelligence investigation focused on a U.S. presidential campaign and then a sitting U.S. president was somehow too low-level to merit their high-level attention. In the Washington way, investigative scrutiny has thus fallen on the derelictions of the minions rather than, as I urged in 2020, on the inconvenience that the entire foreign-intelligence-gathering edifice needs overhauling.
In a 2019 report, IG Horowitz found that the FBI had made some 17 misrepresentations to the FISA court in its applications to monitor former Trump-campaign official Carter Page. I should note that (a) this means the Justice Department’s National Security Division did not examine and question the submissions carefully enough to catch these misrepresentations; and (b) if one reads the probable-cause sections of the applications, one comes away thinking 17, while shocking, is generous. The applications evince awareness that the evidence is scant and dubiously sourced. We now know, moreover, that Justice Department national-security official Stuart Evans was reluctant to green-light the first application but relented under heavy Bureau pressure.
The misrepresentations included the alteration of a key document by an FBI lawyer, Kevin Clinesmith, who eventually and grudgingly pled guilty to a false-statements charge. Prior to the indictment of Democratic Party lawyer Michael Sussmann in mid September, also on a false-statements charge, Clinesmith was the only person to have been charged in special-counsel John Durham’s ongoing Russiagate probe.
With the abuses in the Carter Page surveillance applications uncovered, and with an embarrassed FISC (which did an appalling job reviewing — and endorsing — the Bureau’s slipshod work) angrily lashing out at the FBI, the IG undertook a more searching review. At first, Horowitz performed a partial audit to get a sense of the problem: Was this just a Trump investigation problem or something deeper?
It was the latter. By early 2020, the IG had selected 29 cases of FISA surveillance applications submitted to the FISC over a five-year period (the years 2015 through 2019). Astonishingly, the IG concluded that every one of them failed to comply with the FBI’s procedures. Out of just these 29, further investigation showed hundreds of errors. At least four of them were so serious as to be deemed “material,” meaning that but for the presentation of factual inaccuracies, the applications would have been deemed insufficient and would not have been submitted to the court (i.e., the warrants should not have been issued).
As his new report relates, Horowitz has now examined over 7,000 FISA applications submitted to the FISC from 2015 through early 2020. In so doing, the IG determined that, as to 183 applications, the FBI was noncompliant with its procedures — often grossly so. What specific procedures are we talking about? They are known as the “Woods procedures” (named after Michael Woods, the FBI agent who designed them).
In top-secret FISA national-security surveillance, there are no lawyers representing suspects. Unlike criminal defendants, those targeted for surveillance never get discovery of the representations the government made to a judge in order to get search and eavesdropping warrants. Their attorneys do not get an opportunity to demonstrate to the court that the FBI made misrepresentations of fact, or omitted mention of information that would have made the evidence appear less sinister (e.g., the FBI’s neglecting to tell the FISC that Carter Page had been providing information about his contacts with Russians to the CIA).
The FISA process is one-sided: Executive-branch agents make representations to a court that has no national-security responsibilities under the Constitution, no institutional competence in intelligence operations, and no investigative resources to evaluate the FBI’s claims. Because everything is top-secret, the temptation is great for the FBI to exaggerate the proof that supports its suspicions. If agents can get a judge to approve a flawed application, it is highly unlikely that anyone will ever call them on it — whereas, if an agent plays fast and loose in convincing a judge to issue a criminal warrant, the misconduct is sure to come to light when defense lawyers start poring over the discovery.
Consequently, the FISC, the Bureau, and Congress have acknowledged (at least for public consumption) that the FBI should meet a high standard of reliability in seeking FISA surveillance warrants. The FBI refers to this as the duty to be “scrupulously accurate.”
To meet this standard, agents in a counterintelligence case are supposed to maintain a “Woods file” for every FISA surveillance application. In that file, they are supposed to log in and maintain the evidentiary backup for every single factual assertion that they posit in seeking a warrant — whether it comes from witness statements, documents, electronic records, or what have you. It is on this basis — having a file that contains the hard data supporting their allegations — that the FBI and Justice Department represent to the FISC, under oath, that the surveillance applications they submit are “verified.”
What the IG found, however, is that, in hundreds of instances, Woods files were grossly incomplete — meaning that there was either no factual backup, or insufficient factual backup, for what were represented to the court as “facts.”
Now, this is bad because, as we’ve seen, the Bureau has a higher obligation to be diligent in FISA cases, especially when it wants to monitor Americans suspected of being operatives for nettlesome foreign powers. But let’s not make it into something worse than it is — as some commentators have been quick to do.
The fact that some backup is missing from a Woods file does not necessarily mean the backup does not exist. To the contrary, in most cases it means the FBI has failed to maintain the file properly. That is, the Bureau has evidence someplace but has not harnessed it into the Woods file. So, for example, when the IG initially found 200 instances of Woods file errors, the Justice Department and FBI did further investigation. They found, to the IG’s satisfaction, that in 183 of those instances, the backup existed in other places. For the most part, that is a competence problem, not a corruption problem.
Of course, since we’re talking about national security, incompetence is not something we can abide. Particularly when this is not a one-off. The history of FISA is that the public and Congress blithely assume everything is running smoothly until, on the rare occasion that there is need to look under the hood, irregularities are invariably discovered. That said, the IG found instances in which the Woods file was not just incomplete but missing — which, as Horowitz observes, “represent[s] a significant lapse in the FBI’s management of its FISA program.” That’s a euphemistic way of saying, at least in some cases, something worse than incompetence was at play.
To my mind, we don’t need to know how much worse. The FISA system doesn’t work because it is ill-conceived from scratch. The FBI is a criminal law-enforcement agency. That’s a hard enough job to do well. The separate domestic-security mission of monitoring foreign agents, which is very different in nature, should be reassigned to an intelligence agency. And federal judges are first-rate at conducting trials and presiding over complex litigation; but intelligence-collection is a national-defense function of the political branches, not a judicial proceeding, and the courts should be cut out of it. The mission requires rigorous congressional oversight, aided by a professional staff with the expertise and resources to ensure that surveillance powers are not being abused. And when powers are abused, heads have to roll. What most angers people about all this is that ordinary Americans are ruined by overwrought investigations, but when the investigators are in the wrong, there is little accountability. On that score, the FISA system makes things even more opaque and less accountable.
Alas, the Washington political establishment is invested in FISA, just as it is in every artifice it dreams up to “solve” some pressing problem. The appetite for addressing what is really wrong here is nonexistent.
ANDREW C. MCCARTHY is a senior fellow at National Review Institute, an NR contributing editor, and author of BALL OF COLLUSION: THE PLOT TO RIG AN ELECTION AND DESTROY A PRESIDENCY. @andrewcmccarthy
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