Errors in Page wiretap requests concerning
Ajarring inspector general’s report raises troubling concerns about the potential abuse of FISA courts to undercut civil liberties and interfere in domestic politics.
The comprehensive report by Inspector General Michael E. Horowitz, who is assigned to the Justice Department, was overshadowed Tuesday by news that the Democratic majority in the House of Representatives was moving forward with articles of impeachment for a documented abuse of power — President Trump using the withholding of military funding to pressure the Ukrainian leadership to announce an investigation into his potential opponent in the 2020 election, Joe Biden.
Together they raise fears whether our institutional safeguards, grounded in the U.S. Constitution, will be enough to protect the Republic in this hyper-partisan political age.
Republicans in Washington continue to display a fealty to the president that willfully blinds them to the very real dangers presented by Trump’s eagerness to enlist foreign influence in a U.S. election.
On the other hand, Democrats, while professing such concern about the abuses of the executive branch, blithely dismissed troubling aspects of the inspector general’s findings, while focusing on those conclusions they found politically beneficial.
The Foreign Intelligence Surveillance Act created the secretive Foreign Intelligence Surveillance Court to approve electronic monitoring and physical searches in foreign intelligence investigations; its purpose to combat terrorism and other threats to national security. These courts are, arguably, a necessary exception to the ideal of open courts.
In 2016 the FBI, as part of a probe labeled the Crossfire Hurricane investigation, turned to the court to wiretap Carter Page, a former Trump campaign adviser then known to still have interactions with the campaign. Investigators were concerned that Page, a petroleum industry consultant who had worked extensively in Russia, could be acting as a Russian agent.
The inspector general pointed out the inherent dangers of “operations (that) had the potential to gather sensitive information of the (Trump) campaign about protected First Amendment activity.”
Despite the recognized sensitivity of investigating someone associated with a presidential campaign, Horowitz determined that FBI investigators fell far short of their legal burden to present a “scrupulously accurate” warrant application to the FISA judge. Instead, the inspector general identified seven inaccuracies or omissions in the initial application and a total of 17 counting subsequent extensions of the wiretapping warrant.
The common theme was for investigators to present information to the court that overstated the suspicions about Page, while downplaying or leaving out information that would have lessened suspicions. Horowitz does not speculate whether the FISA judge would have approved a warrant if presented with a scrupulously accurate application.
While the Horowitz report lays out the potential that the process could be abused to essentially spy on a campaign, it found no evidence that was the case in this instance. The questionable handling of the Page probe should also be viewed in the context of an overall investigation, involving hundreds of witnesses and voluminous evidence, which substantiated Russian interference on behalf of the Trump campaign in the 2016 presidential election.
In deciding to open the investigation into Page, Counterintelligence Division Director E.W. “Bill” Priestap complied with Justice Department and FBI policies, writes Horowitz. “We did not find documentary or testimonial evidence that political bias or improper motivation influenced his decision.”
Instead, the inspector general “found that Crossfire Hurricane was opened for an authorized investigative purpose and with sufficient factual predication.”
The inspector general report also shoots down the claims by those in the Trump camp that the campaign was spied on by the FBI. “We found no evidence that the FBI attempted to place any confidential human sources with the Trump campaign.”
In FBI parlance, confidential human sources are undercover operatives — spies.
The conclusion that the investigation was predicated on evidence, not any political bias, was quickly challenged.
“We do not agree with some of the report’s conclusions as to predication,” read a statement from John H. Durham, a U.S. attorney based in Connecticut, who is also investigating the matter.
A conflicting finding by Durham, if it comes, will only further erode public confidence in the ability of its institutions to act fairly and impartially.
Congress should consider reforms to prevent abuse of the FISA courts by future administrations, of either party — or by loose canons within the FBI — to electronically monitor campaigns.
Encouragingly, FBI Director Christopher A. Wray announced numerous corrective steps to address the inspector general’s recommendations to repair the process. Such a response provides a glimmer of hope in a dark political time.