On December 17, 2019, Rosemary M. Collyer, the Presiding Judge of the United States Foreign Intelligence Surveillance Court issued an order requiring the FBI to “inform the Court in a sworn written submission of what it has done, and plans to do, to ensure that the statement of facts in each FBI application accurately and completely reflects information possessed by the FBI that is material to any issue presented by the application.” The judge gave the FBI until January 10, 2020.
Although numerous FBI defenders have downplayed the deficiencies noted in the recent OIG report on the FISA-related misconduct involving the Carter Page investigation, Judge Collyer reacted to the revelations with urgency and surprise. “In order to appreciate the seriousness of that misconduct and its implications, it is useful to understand certain procedural and substantive requirements that apply to the government ‘s conduct of electronic surveillance for foreign intelligence purposes.” The FBI, she noted, applies for these warrants on an “ex parte” basis, meaning that the court is totally dependent upon the truth and completeness of the FBI submission. The FISA court is the last guarantor of the FBI’s compliance with the Fourth Amendment. She noted, “the government. . . has a heightened duty of candor to the FISC in ex parte proceedings… The FISC expects the government to comply with its heightened duty of candor in ex parte proceedings at all times. Candor is fundamental to this Court’ s effective operation.”
The court noted that the OIG report described several instances in which FBI personnel withheld “information in their possession which was detrimental to their case for believing that Mr. Page was acting as an agent of a foreign power.” The court further noted that, “an attorney in the FBI’s Office of General Counsel (OGC) engaged in conduct that apparently was intended to mislead the FBI agent who ultimately swore to the facts in that application about whether Mr. Page had been a source of another government agency.”
The court did not adopt the OIG’s characterization of the misconduct in the OIG report as unintentional deficiencies. She wrote, “The FBI’ s handling of the Carter Page applications, as portrayed in the OIG report, was antithetical to the heightened duty of candor described above. The frequency with which representations made by FBI personnel turned out to be unsupported or contradicted by information in their possession, and with which they withheld information detrimental to their case, calls into question whether information contained in other FBI applications is reliable. The FISC expects the government to provide complete and accurate information in every filing with the Court.”
The court noted that the FBI certified that Paul Manafort used Carter Page as an intermediary to collude with Russia. The FBI knew Page had never met Manafort but withheld that fact from the court. It also noted that the warrant application also claimed Page met with Igor Sechin and Igor Divyekin while in Russia. The FBI knew by October 2016 that Page never met either of these men. The FBI also withheld from the court Steele’s October 2016 admission that he had questions about the reliability of his own source. The FBI also exaggerated the extent to which Steele’s reporting was corroborated and falsely reported that it had been used in prior criminal proceedings.
The Order also indicated that the government is currently conducting a declassification review of a more extensive December 5, 2019 order. The court gave the government until December 20 to finish that review in anticipation of the FISA court publishing that order with “minimal if any redactions.”