Deciphering the FISC’s Order on the Carter Page FISA Application

In early January, we gained further insight into what went wrong with the FBI’s application to wiretap former Trump campaign adviser Carter Page and what the Justice Department will do about it.

On January 7, the presiding judge of the U.S. Foreign Intelligence Surveillance Court (FISC) issued an order (declassified on January 23) in response to a filing by the Justice Department providing notice of material misstatements and omissions in the Page FISA, as outlined in the DOJ Office of the Inspector General (IG) report. Below are a few notes deciphering the court’s order, viewed in light of the IG’s principal conclusions and internal practices of the FBI.

First, the notice, filed by the DOJ on December 9, remains classified, but it apparently references four docket numbers, one of which corresponds to the initial FISA application for Page, and three of which correspond to the renewal requests which followed at 90-day intervals. The court states that

DOJ assess that with respect to the applications in Docket Numbers 17-375 and 17-679, “if not earlier, there was insufficient predication to establish probable cause to believe that [Carter] Page was acting as an agent of a foreign power.”

The two packages the DOJ determined did not meet its own evidentiary standard for probable cause refer to the last two renewals (filed in April and June 2017). This is notable considering that a large part of the IG report is focused on seven key inaccuracies and omissions which were in the initial FISA application itself.

This is likely due to the DOJ focusing on the two most egregious violations highlighted by the IG report: 1) reporting by Christopher Steele’s primary sub-source, whom the FBI interviewed directly in January 2017 (possibly after the first but before the second renewal), whose statements were inconsistent with or directly contradicted key assertions relied upon in the initial applications; and 2) the inclusion of an altered statement made by an attorney in the FBI Office of General Counsel in June 2017 (before the third renewal) which falsely stated that Page was “not a source” with another agency during any relevant time periods of the application. The severity of these two violations likely make the packages in which they were included per se invalid (since the DOJ cannot submit false information to the court).

To be sure, DOJ has left open the possibility that both the initial application and first renewal also fell below its evidentiary standard as well. Although the court noted that “[t]he government apparently does not take a position on the validity” of the first two authorizations, it has chosen to treat the intelligence collected from them the same way as the two invalid renewals. In particular, DOJ has assured the court that it will “sequester” the information it has gathered as a result of all the Page surveillance, meaning that it will locate, isolate, and restrict access to any such information.

What does this look like in practice? In my experience, the difficulty of achieving this will be directly proportional to how valuable the intelligence gathered on Page was to both his and other investigations. While much of the discussion on FISA to date has focused on the process of obtaining permission to suveil a target, there are few descriptions of the bureaucratic processes and paperwork that result once you actually obtain a FISA order. In the post-9/11 world, the paperwork can be voluminous and, in the interest of ensuring that all intelligence is shared across agencies, potentially broad-reaching.

First, one thing to note is that commencing electronic surveillance does not mean that an agent sits with headphones in a van, like they show in the movies. Typically, agents are not directly involved at all in the initial content collection – linguists specifically tasked with taking the first cut listen and record the content. Even at this stage, they do not provide around-the-clock transcription but rather, based on specifics provided by the case agents, verbatim transcriptions of only portions of the surveillance that relate to those aspects (this could relate to specific contacts, activities, or other details pertinent to that case). This collection is likely broader than what would be collected in a Title III (criminal) electronic surveillance, which is only authorized to collect evidence of a crime – but even so, it is a subset of the total amount of information to which the FBI potentially has access.

Once these “tech cuts” are received, the case agent must comb through and “minimize” them. As stated in the FISC court order, the FISA statute requires procedures

that are reasonably designed …to minimize the acquisition and retention…of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information.

What this means in practice is that each snippet of communication collected by the FISA linguist must have a clear foreign intelligence purpose or value, or must be discarded. The case agent must examine each individual “cut,” determine whether it constitutes “foreign intelligence,” and, if not, mark it for deletion. (Note that in the course of inspections and oversight, agents may be asked by DOJ lawyers to provide the foreign intelligence justification for specific cuts which remain in the file, or be found in violation of minimization procedures if they are unable to do so).

What’s left in the file after the collection and minimization procedures, then, is foreign intelligence information that is relevant to that target, and possibly to other cases within the FBI. Counterintelligence targets, in particular, are likely to be relevant and of interest to other U.S. intelligence agencies, who may be collecting on foreign targets that overlap with the FISA target, or have human sources which may be reporting on similar foreign intelligence activities. This information is distributed internally through the Intelligence Community (IC) in an Intelligence Information Report (IIR), and intelligence-sharing mechanism that originated after 9/11 to encourage sharing of information across the IC. Minimization procedures and U.S. law require that the identities of U.S. persons incidentally captured in such communications are “masked” in any intelligence disseminated outside the collecting agency – unless the identity of that individual is necessary to understand the foreign intelligence information provided in the report. A U.S. person who is the direct target of a FISA order, however, does not need to be “masked” since by definition (as an “agent of a foreign power”) their identity is relevant to the foreign intelligence that is collected.

For the Page FISA, this means that if the electronic surveillance didn’t yield any real foreign intelligence information, sequestering the information gleaned from the FISA should be relatively easy – after all, in such a case there would be relatively little intelligence contained in the case file itself, and there would have been no need to disseminate it to the rest of the IC. However, the fact that the FISA was renewed three times suggests that this scenario is unlikely. That’s because renewals are based on the government justifying, every 90-days, that it is, in fact, obtaining foreign intelligence information – meeting this standard is the prerequisite for obtaining the renewal. Further, nothing in the IG report suggests that there were any deficiencies, omissions, or errors in the new information provided to the court with each renewal – the focus was on the defects and failure to include updated information contained in the original applications itself (which is always included in each subsequent renewal). Further, given that other intelligence agencies were actively involved in identifying, monitoring, and neutralizing Russia’s interference in the 2016 election, it is almost certain that at least some portion of the collection made its way to other parts of the IC, in addition to other cases within the FBI.

How the FBI intends to identify and effectively “recall” this intelligence remains to be seen – the order of the FISC is, in fact, for the DOJ to provide an explanation of exactly how they intend to do that. One irony, of course, is that apart from the FBI, one of the main parties responsible for disseminating the contents of the Page FISA is Rep. Devin Nunes (R-Calif.), who even attempted to declassify the entire application (and ultimately succeeded in getting the DOJ to declassify and release parts of it) despite believing that it was unlawfully obtained. (50 U.S.C. Sec. 1809(a)(2) makes it a crime to “intentionally disclose…information obtained by…electronic surveillance, knowing or having reason to know that information was obtained through electronic surveillance not authorized” by FISA). Nunes’ wide dissemination of the contents of the Page FISA to the public is something the DOJ can never undo.

Photo by Joe Raedle/Getty Images

 

About the Author(s)

Asha Rangappa

Senior Lecturer at Yale’s Jackson Institute for Global Affairs. She served as an FBI counterintelligence agent from 2002 to 2005. Member of the editorial board of Just Security. Member of the editorial board of Just Security. Follow her on Twitter (@AshaRangappa_).