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Center for Ethics and the Rule of Law

 


FISA, Horowitz Report, investigations • January 28, 2020

The unspoken words: Thoughts on the findings of the Horowitz Report

by Michael Levy

 

The FBI Inspector General’s report, commonly referred to as the Horowitz Report, is not good news for the country. To be sure, it contains some good news. It found no political bias in the opening of the investigation. The investigation was opened because the Federal Bureau of Investigation (FBI) had received information from a friendly foreign government that George Papadopoulos, a then Trump campaign advisor, had said that a Trump team member had learned that Russia could assist the campaign. This should have been of concern. Not only could it signal Russian interference in our elections, it could also signal that someone in the campaign was, perhaps unwittingly, passing useful information to Russia. (As George Smiley in John Le Carré’s novel Tinker, Tailor, Soldier, Spy put it, the danger is that while you think you are getting good information, you are actually getting chickenfeed while giving away the crown jewels.)

The bad news, however, was the sloppiness of the FBI in its applications to conduct electronic surveillance of Carter Page under the Foreign Intelligence Surveillance Act (FISA). That sloppiness has prompted the Inspector General (IG) to open a new investigation to see if the failings in the Page investigation were unique or were part of a pattern with FISA applications.

The initial information received by the FBI prompted it to open a preliminary investigation. The FBI guidelines specify levels of investigations as “assessments,” “preliminary investigations,” and “full investigations.” Each level permits the use of more investigative tools. The preliminary investigation soon escalated to a full investigation. It was at that stage that things went awry. Here, the Report portrays a breakdown of law enforcement procedures used to comply with the law.[1] Although Mr. Horowitz did not find any political motivation for the opening of the investigations, other law enforcement biases may explain what happened thereafter, and they are not good either.

These biases are best expressed in a 1948 U.S. Supreme Court decision, Johnson v. United States, written by Justice Robert Jackson (a former Attorney General and the lead American prosecutor at the Nuremberg trials.) “The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.”

FISA is one of the byproducts of Watergate. As Congress proceeded with its investigations, it discovered that for many years spanning many administrations, the government had used the power to conduct warrantless wiretaps for national security against Americans who were involved in actions protected by the First Amendment. The subjects included civil rights leaders like Martin Luther King, Jr. and those opposed to the Vietnam War. (See Book II of the Final Report issued in 1976.) In response, Congress passed FISA, requiring that national security surveillance of U.S. persons (American citizens and those lawfully in the United States) had to be approved by a special court. The Act created the Foreign Intelligence Surveillance Court (FISC) for this purpose. FISA required procedures similar to those in standard Fourth Amendment search and electronic surveillance matters. The procedures require a sworn affidavit that sets forth the relevant facts.[2] Both regular warrant procedures and FISA warrant procedures presume that all material facts will be presented to the judge. That means that the applicant must disclose evidence that may contradict the conclusions that the law enforcement officer wants the judge to reach. In making those disclosures, the officer can explain why those contradictory facts do not invalidate the officer’s conclusion. Doing that gives the judge all the material that she may need to reach a proper decision.

The failings outlined in the Horowitz Report are (with one exception)[3] those of omission—failing to disclose material facts that might have led a judge to a different conclusion. These are the unspoken words that I refer to in this post’s title. It is very likely that the concern that someone may have been working with Russian agents (regardless of who that person was) drove these agents and attorneys. Law enforcement officers tend to be, in Justice Jackson’s word, zealous, and we want them to be. They want to catch wrongdoers. (Most of the law enforcement officers I worked with also tended to be conservative.) But in this case, they set their sights just on the short-term goal of getting to the bottom of a matter. They lost sight of the long-term goal of making sure that the process they followed was the right one. They failed to make sure that the “neutral and detached” judge responsible for making that decision had all the facts.

Whether the Carter Page application was an outlier or not (something that will await Horowitz Report 2), the implications either way are troubling. If it was, it gives credence to arguments that it was politically biased. (Again, it is very likely that it was political only in the sense that if someone from either campaign had such close connections to the Russians, there would have been a heightened concern and urgency and not because of an anti-Trump bias.) If it was part of a broader failure, then FISA and its procedures may have been abused on a broader scale. If so, FISA[4] and its procedures will undergo some serious examination and revision.

On December 17, 2019, the FISC entered an order requiring the FBI to report “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 FBI responded with a public filing on January 10, 2020. In a Declaration of Christopher W. Wray, Director, FBI, attached to the FBI response, the FBI proposes a number of procedural changes to ensure accuracy. The proposed changes include:

  • Requiring new checklists of relevant information for FISA applications that will direct agents to gather all relevant details. The checklist will emphasize the need to err on the side of disclosure.
  • Requiring that all information bearing on the reliability of informants, whose information is used, is put into the request form and verified by the agent assigned to handle the informant.
  • Requiring affidavits from the agent and the supervisor stating that they have disclosed “all information that might reasonably call into question the accuracy of the information in the application or otherwise raise doubts about the requested probable cause findings or the theory of the case.”
  • Develop and require mandatory training for FBI personnel about the steps that the FBI must take to be sure that the National Security Division (NSD) and the FISC are “apprised of all information in the FBI’s holdings at the time of an application that would be relevant to a determination of probable cause.” The proposed training will include a case study of the Carter Page application, so rather than just receiving general principles, FBI personnel can see those principles in action and see the failure to follow them.

These are all good and are designed to remind the persons involved in the process of the importance of integrity—the final word in the FBI’s motto. Requiring more people to swear to the accuracy of a filing is a reminder to them each time of the importance of accuracy and completeness. Checklists are also useful for ensuring that agents follow all the steps required and that they have provided all material information.

On the day the FBI filed its response to the FISC order, the court appointed David Kris, former Assistant Attorney General for the NSD and an author of the definitive text in the area, as amicus curiae and asked him to comment on the FBI’s filing. His filing makes a number of suggestions to the court. As he notes, however, the critical issue is cultural reform. (“A culture of operational personnel who feel checked and second-guessed by distant compliance officers is far less effective than a culture in which operators themselves are made to feel like compliance officers, with direct responsibility and accountability for following the rules.”)

I do not see, however, any discussion about reporting the results of an intercept order to the FISC. Perhaps that is subsumed in the proposed reforms, but it is worth making explicit. Minimization procedures distinguish FISA intercepts from regular criminal wiretaps. Criminal wiretaps are monitored in “real time.” If a wiretapped conversation is not pertinent, agents stop listening and stop recording, i.e., they “minimize” the interception. FISA surveillance is not necessarily monitored as it occurs. In many cases, this is necessary because of the languages spoken or the fact that the intercept is of electronic communications. Minimization for FISA intercepts is done after the fact.

Apparently in the Carter Page surveillance the agents reviewed the intercepts at or close to the time they occurred. That makes sense. If you are so concerned that someone is an agent of a foreign power, and you are going to go to the trouble of getting FISC orders to intercept that person’s communications, you would probably want to see what you were getting sooner rather than later. Inspector General Horowitz testified that he “found evidence that agents discussed ‘not finding anything with regards’ to Page but pressed ahead anyway instead of reassessing whether the probe was worthwhile.” In addition, in a DOJ filing with the FISC that a recently released order revealed, the government conceded that as to the third and fourth electronic surveillance orders, “there was insufficient predication to establish probable cause to believe that [Carter] Page was acting as an agent of a foreign power.”

With a criminal wiretap, the law requires the government to make regular progress reports to the authorizing judge. If a wiretap is finding nothing, the judge may ask why the government is proceeding and certainly would not renew the wiretap. With a FISA application, because real time monitoring is not required, an authorization can be renewed even if no one knows if it is gathering useful information or not. In this case, Horowitz’s testimony, coupled with the DOJ filing, suggests that the agents knew they were drilling in a “dry hole,” but proceeded without informing the FISC. The court should consider requiring accurate reporting of “dry holes.”

The FBI should also consider establishing a review procedure that takes advantage of disparate goals within an organization to help expand protections. On a broad scale, one of the things that protects against the misuse of FISA to conduct criminal investigations is the reluctance of intelligence agents to have cases prosecuted. Their concerns are gathering intelligence and protecting sources and methods. Anytime there is a suggestion that a case should be prosecuted, there is an internal debate between those wanting to prosecute and those wanting to gather operational intelligence. This institutional conflict discourages agents from seeking FISA warrants when the only real objective is a criminal prosecution.

On a more procedural level, the DOJ requires that all criminal wiretap applications be approved by the DOJ’s Office of Enforcement Operations (OEO). That office has expertise in the Wiretap Act, but it also has a mission to be certain that the DOJ never does anything that could jeopardize its use of wiretapping. That oversight role creates a tension between investigators and prosecutors seeking a wiretap on the one hand, and OEO on the other. OEO does not care about the investigation; OEO cares about the Wiretap Act. Ask any federal prosecutor or any federal agent who has sought a wiretap and they will tell you that getting the application through OEO was harder than getting it approved by a district court judge. The FBI should consider exploiting some similar point of intra-agency tension as well.

Although these suggestions are about procedures, procedures are important. While the broad general principles of the Fourth Amendment and FISA are paramount, it is in the everyday compliance (or non-compliance) that our liberties get protected. As Justice Jackson noted, the Fourth Amendment prohibits “unreasonable searches and seizures,” but it creates a procedure requiring that a non-law enforcement person—a judge—decide whether to issue a warrant. Moreover, the concerns here go beyond FISA because the public’s reduced confidence in the FBI will not be carefully cabined to foreign intelligence investigations. Instead, it will have the unfortunate effect of spreading to all investigations, intelligence and criminal.

Following the proper process is essential to protect civil liberties. More than 50 years ago, the failure to do so harmed civil rights leaders and war protesters. This time it was a member of the Trump campaign. Ultimately, these failures hurt all of us. It is incumbent upon the FBI (with the supervision of the FISC) to institute procedures that discourage such failures. It is for the FBI’s good and ours.

Michael Levy is the former Chief of Computer Crimes at the U.S. Attorney’s Office for the Eastern District of Pennsylvania. He is currently an adjunct professor of law at the University of Pennsylvania Carey Law School.

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[1] Nothing in the Horowitz Report suggests that there are any flaws in FISA. Because several parts of FISA are up for review by Congress this year, it will be essential to distinguish between bad procedures to comply with the law and flaws in the law itself that should be corrected. This article focuses only on the procedural concerns.

[2] The Fourth Amendment requires that “no Warrant shall issue but upon probable cause, supported by Oath or affirmation … .” FISA has the same requirement for electronic surveillance (50 U.S.C. § 1804(a)) and physical searches (50 U.S.C. § 1823(a)).

[3] That exception is particularly troubling for it involves the falsification of information by an attorney in the FBI’s Office of General Counsel as part of the renewal of FISA surveillance. The Horowitz Report summarizes these acts as follows:

However, when asked by one of the supervisory special agents (SSA) on the Crossfire Hurricane team (who was going to be the affiant on the final FISA renewal application) about Page’s prior interactions with that other agency, the OGC Attorney advised the SSA that Page was “never a source” for the other U.S. government agency. In addition, the OGC Attorney altered the email that the other U.S. government agency had sent to the OGC Attorney so that the email inaccurately stated that Page was “not a source” for the other agency; the OGC Attorney then forwarded the altered email to the SSA. 
Horowitz Report, p. 41.

[4] As noted above in footnote 1, parts of FISA are up for Congressional review this year. Congress may decide to weigh in with more than procedural changes.