Wall Street Journal
December 26, 2019
The Foreign Intelligence Surveillance Court this week blasted the Federal Bureau of Investigation for “misconduct” in the Carter Page surveillance warrant. Some would call this accountability. Others will more rightly call it the FISC’s “shocked to find gambling” moment.
Presiding Judge Rosemary Collyer issued her four-page rebuke of the FBI Tuesday, after a Justice Department inspector general report publicly exposing the FBI’s abuses. The judge blasted the FBI for misleading the court by providing “unsupported or contradicted” information and by withholding exculpatory details about Mr. Page. The FISC noted the seriousness of the conduct and gave the FBI until Jan. 10 to explain how it will do better.
The order depicts a court stunned to discover that the FBI failed in its “duty of candor,” and angry it was duped. That’s disingenuous. To buy it, you’d have to believe that not one of the court’s 11 members—all federal judges—caught a whiff of this controversy until now. More importantly, you’d have to ignore that the court was directly informed of the FBI’s abuses nearly two years ago.
On Feb. 7, 2018, Devin Nunes, then chairman of the House Intelligence Committee, sent a letter to Judge Collyer informing her of its findings in his probe of the FBI’s Page application. He wrote that “the Committee found that the FBI and DOJ failed to disclose the specific political actors paying for uncorroborated information” that went to the court, “misled the FISC regarding dissemination of this information,” and “failed to correct these errors in the subsequent renewals.” Mr. Nunes asked the court whether any transcripts of FISC hearings about this application existed, and if so, to provide them to the committee.
Judge Collyer responded a week later, with a dismissive letter that addressed only the last request. The judge observed that any such transcripts would be classified, that the court doesn’t maintain a “systematic record” of proceedings and that, given “separation of power considerations,” Mr. Nunes would be better off asking the Justice Department. The letter makes no reference to the Intelligence Committee findings.
Mr. Nunes tried again in a June 13, 2018, follow-up letter, which I have obtained. He told the court that Congress “uncovered evidence that DOJ and FBI provided incomplete and potentially incorrect information to the Court,” and that “significant relevant information was not disclosed to the Court.” This was Mr. Nunes telling FISC exactly what Inspector General Michael Horowitz told the world—18 months sooner. Mr. Nunes asked Judge Collyer to “initiate a thorough investigation.” To assist her, the same month he separately sent FISC “a classified summary of Congress’s findings and facts” to that point. The letter was signed by all 13 Republican members of the Intelligence Committee.
Judge Collyer blew him off. Her letter on June 15, 2018, is four lines long. She informs Mr. Nunes she’s received his letter. She says she’s also received his classified information. She says she’s instructing staff to provide his info to “the judges who ruled on the referenced matters.” She thanks him for his “interest” in the court.
This is stunning, given the House Intelligence Committee has oversight jurisdiction of FISA. And Mr. Nunes didn’t come to the court with mere suspicions; he provided facts, following a thorough investigation. The court at the very least had an obligation to demand answers from the FBI and the Justice Department.
It didn’t—because it didn’t want to know. One of the biggest criticisms of the FISA court since its inception is that it is a rubber stamp for law enforcement. The FISA process is one in which government lawyers secretly and unilaterally present their case for surveillance to judges, with no defense attorney to argue in opposition. The system relies on judges to push back, but they don’t. Until recently, the FISA court routinely approved 100% of the applications before it.
Just as it rubber stamped the Page warrant. That application made clear the FBI was asking to spy on a U.S. citizen associated with a presidential candidate. And the court was provided a footnote indicating political operators were involved in producing the allegations. If ever there was time to grill a few government lawyers, this was it. Yet from the inspector general’s evidence, the court whipped through the warrant with barely a blink.
The secrecy of FISA had always shielded the players from scrutiny. But Mr. Nunes’s inspection of the Page applications threatened to highlight this rot in the system. Judge Collyer’s dismissive letters made clear just what the court thought of Congress poking its nose into the secret club.
After the Horowitz report, the court had no choice but to respond. It’s predictably pointing fingers at the FBI, but the court should itself account for its failure to provide more scrutiny, and its refusal to act when Mr. Nunes first exposed the problem. The FBI is far from alone in this disgrace.
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