A Note on FISA “Verification”

Last week, former FBI Director James Comey testified before the House Judiciary and Oversight Committees in closed session. When, at Comey’s request, a transcript was released shortly thereafter, mainstream news outlets mostly yawned, finding relatively little new or noteworthy. But numerous Trumpophile outlets had a different reaction, seizing on Comey’s acknowledgement that the now-notorious “Steele Dossier” was still in the process of being vetted when Comey left in the Bureau. This provided an opportunity to revive a complaint about purported improprieties in the application for a FISA order to intercept the communications of erstwhile Trump campaign advisor Carter Page: The information provided in FISA applications must be “verified” before it is submitted to the Foreign Intelligence Surveillance Court, and here we have (the objection runs) an apparent admission that the information was not verified!

If we construe this as a complaint that Page was monitored on thinner evidence than should be required for protracted surveillance of an American citizen, that complaint may well have merit, though we would need to know the full contents of the application—much of which remains redacted—to say with any confidence. But if the objection is procedural—an argument that the FBI violated its own requirements—then the complaint is simply wrong, and based on a basic confusion about what FISA “verification” means.

First, there is a tendency to conflate statements that Comey and other public officials have made about the Steele Dossier as a whole with claims about the specific reporting relied on in the Page FISA application. Comey, for example, had previously referred to part of the Dossier as “salacious and unverified”—referring to a lurid account of a supposed Trump tryst with prostitutes in Moscow. Whether the FBI developed other evidence supporting that claim is not particularly relevant to whether they had information that led them to give more credence to the specific memorandum concerning Carter Page’s trip to Russia. So just as a general matter, when you see broad claims about the “Steele Dossier,” it’s worth taking a look at context to determine whether they’re referring to information relied on in the investigation or other elements of Steele’s reporting.

More fundamentally, though, much of the commentary claiming some clear breach of protocol in the Carter Page FISA simply misunderstands what it means to say that a FISA application has been “verified.” It does not mean that every tip provided by a source has been independently corroborated. Rather, “verification” refers to the process laid out in the so-called “Woods procedures,” which require Justice Department officials to verify that representations made in a submission to the Foreign Intelligence Surveillance Court match the information in the FBI’s investigative files. If the application relies upon a source for some claim, does the documentation in the case file support that the source actually said what the application presents the source as saying? In this case, then, “verification” would not mean the FBI had necessarily tracked down Steele’s own sources to corroborate his reporting. Rather, it would require that someone “verify” that when the application summarized what Steele had told the FBI, it did so accurately.

This should, in a way, be a matter of common sense. If the FBI had independently confirmed a tip from a source, after all, that independent confirmation would be in the application. Indeed, why would you rely on a source at all if you had been able to directly confirm their claims? It would be fairly bizarre for the FBI to say “our own investigation has unearthed proof that our source’s claims were true, but we’re not going to make that proof part of our showing to the court.” In this case, it seems as though the FBI was quite straightforward in telling the FISA Court that their reliance on Steele’s information was based on his track record of providing reliable evidence in the past, not on having independently duplicated his reporting. There is a reasonable argument to be made that the Court should not have been satisfied with this sort of second- or third-hand evidence, but it can’t be reasonably argued that they didn’t understand what the evidence was, or were tricked into thinking the FBI had extra secret evidence to support their claims. It is not so uncommon, after all, for intelligence investigations to involve information provided by foreign allies that the U.S. government cannot itself directly check. If Israel tells the FBI about information reported by an undercover agent in a terror group, the FBI can check whether that intelligence is consistent with their other information, but will rarely be able to interview the mole directly. The question, as always, is not whether one has indisputable proof, but what level of credibility the agency ascribes to the varied types of information it has available.

Does that mean the Carter Page warrant was appropriate, and should have been granted? Again, it’s hard to say without both seeing the full application, and perhaps knowing more about Steele’s history of providing reliable information. But if there is an objection to make here, it’s to the FISA application process, and the standards of evidence applied by the FISC in general—not to a deviation from normal protocol that resulted in the unwitting FISC justices being tricked about what evidence FBI had available.

Photo of former Federal Bureau of Investigation Director James Comey leaves the Rayburn House Office Building after testifying to the House Judiciary and Oversight and Government Reform committees on Capitol Hill December 07, 2018 in Washington, DC. by Chip Somodevilla/Getty Images.

 

About the Author(s)

Julian Sanchez

Senior Fellow at the Cato Institute, contributing Editor for Reason magazine. Member of the editorial board at Just Security. You can follow him on Twitter (@normative).