WASHINGTON — A secretive court that approves sensitive surveillance issued a rare public rebuke of the FBI on Tuesday, saying the bureau misled the Justice Department and the court when it sought permission to wiretap a former Trump campaign aide.
The FBI’s handling of the applications to wiretap Carter Page “was antithetical to the heightened duty of candor” expected of the bureau, Judge Rosemary Collyer of the Foreign Intelligence Surveillance Court wrote in a public opinion released Tuesday.
“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,” Collyer wrote.
The judge ordered the FBI to outline by Jan. 10, 2020, any changes it has made or plans to make to improve surveillance allowed under the Foreign Intelligence Surveillance Act, or FISA. The law, enacted in 1978, outlines procedures investigators must follow when they ask judges for permission to conduct electronic surveillance of people suspected of acting as foreign agents.
Collyer issued the order a week after the Justice Department’s watchdog released a damaging report identifying 17 inaccuracies in the applications to wiretap Page in 2016 and 2017. As part of the FBI’s inquiry into Russia’s efforts to meddle in the 2016 presidential election, investigators conducted surveillance on Page, whom they believed was conspiring with the Russian government.
The report debunked claims by the president that the Russia investigation was motivated by political bias. But it revealed a dysfunctional system in which a team of investigators, handpicked to conduct one of the FBI’s most sensitive investigations, committed “basic and fundamental errors.”
In a statement released late Tuesday afternoon, the FBI said Director Christopher Wray has characterized the inspector general’s findings as “unacceptable and unrepresentative” of the bureau.
Wray has ordered more than 40 corrective steps, the FBI said, including some that go beyond what the inspector general recommended.
“FISA is an indispensable tool in national security investigations,” the FBI said, “and in recognition of our duty of candor to the court and our responsibilities to the American people, the FBI is committed to working with the FISA court and DOJ to ensure the accuracy and completeness of the FISA process.”
The FBI sought four court-ordered wiretaps of Page. Each application contained multiple errors, according to Inspector General Michael Howoritz’s report.
Among the most common errors were omissions of important information, including some that contradicted investigators’ suspicions that Page was acting as a foreign agent. During Senate testimony last week, Horowitz said the surveillance of Page continued even as investigators gathered new evidence “that weakened the assessment of probable cause.”
For example, investigators overstated the reliability of a former British intelligence officer whose information they used to justify the warrants. They described Christopher Steele as someone whose information had been “corroborated and used in criminal proceedings.” Horowitz’s report said that wasn’t true.
Investigators didn’t provide documentation to back up their assertions to justify the warrants on Page. In some cases, the documents showed their claims were wrong. One supervisor said he didn’t necessarily review full documents to make sure they supported what the agents claimed, according to the report.
Horowitz referred a former FBI attorney to prosecutors for possible criminal investigation. The report said the attorney altered an email from a liaison at another government agency confirming that Page had been a source of information. The FBI attorney changed the email to say the opposite, covering up a piece of information that could have undercut the FBI’s justification to wiretap Page.
This, Collyer wrote in her order, “gave rise to serious concerns about the accuracy and completeness” of any surveillance warrant applications involving that attorney.
The Foreign Intelligence Surveillance Court “expects the government to provide complete and accurate information in every filing,” Collyer wrote. “Without it, the [court] cannot properly ensure that the government conducts electronic surveillance for foreign intelligence purposes only when there is a sufficient factual basis.”
Horowitz’s office has started an audit of the FBI’s applications for wiretaps like the one used on Page.
Civil rights advocates have called on Congress to reform the surveillance process.
“This is not the first time the government abused its surveillance powers, nor was it the first time the intelligence court was made aware of surveillance abuses,” Neema Singh Guliani, the American Civil Liberties Union’s senior legislative counsel, said in a written statement.
“Congress must radically reform the FISA process to increase accountability and to ensure there is meaningful opportunity to challenge the government’s allegations in FISA applications,” she said.
Sen. Lindsey Graham, R-S.C. and chair of the Senate Judiciary Committee, said reforming FISA will be his priority next year.
“I’ll be working with my Republican and Democratic colleagues to reform FISA in a fashion to better protect civil liberties while maintaining our ability to monitor foreign surveillance directed against our economic and national security interests,” Graham said in a statement.
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