Judge demands answers from FBI on faulty surveillance applications

By Josh Gerstein

Public fallout from a Justice Department watchdog’s revelations of failures in the FBI’s handling of intelligence-related surveillance warrants spread to the courts on Tuesday, as a key judge slammed the government for presenting inaccurate, misleading and incomplete information.

Judge Rosemary Collyer, the presiding judge of the secretive, 11-member Foreign Intelligence Surveillance Court, signaled grave concern about the inspector general’s findings that the FBI made a series of misstatements and omissions in applications for surveillance of Carter Page, an energy expert who served for a time in 2016 as a foreign policy adviser to Donald Trump’s presidential campaign.

“The FBI’s handling of the Carter Page applications, as portrayed in the OIG report, was antithetical to the heightened duty of candor” the government owes to the court, Collyer said in an unusual, four-page order.

Inspector General Michael Horowitz’s report, released last week, found seven significant inaccuracies and omissions in the initial surveillance application for Page, and a total of 10 in three follow-up applications.

One notable omission was that the FBI failed to disclose to the court that a central source who was used to justify the surveillance denied making some comments that another source attributed to him and said other remarks were simply unreliable rumors.

Collyer, who was appointed to the U.S. District Court in Washington by President George W. Bush and tapped for the surveillance court by Chief Justice John Roberts, also raised the possibility that the failings might go well beyond the politically sensitive Page case and extend to the court’s other cases, which typically involve efforts to target suspected spies, foreign agents and international terrorists.

“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 FISC expects the government to provide complete and accurate information in every filing with the Court,” the judge added. “Without it, the FISC cannot properly ensure that the government conducts electronic surveillance for foreign intelligence purposes only when there is a sufficient factual basis.”

Judges of the court, who handle surveillance applications on a rotating basis, have sometimes issued opinions highly critical of intelligence agencies for mishandling certain information-gathering programs. On occasion, those programs have even been halted.

But experts on the court said a public order like Collyer’s that said the government’s credibility was in doubt across the board, in all cases, was a rarity. Analysts also said the unusual statement indicated that Collyer recognizes that the court’s own credibility is at stake.

“What is unusual about this is it was blasted out to the public and it clearly is addressed not only to the FBI but also to the readers of Mr. Horowitz’s report,” said Steven Aftergood of the Federation of American Scientists think tank. “It’s a struggle for the legitimacy of the court. … The FBI took the biggest hit from the report, but the court also looks bad.”

Aftergood said the fact that Horowitz found inaccuracies and omissions underscored previous criticism that the one-sided, closed-door process can result in judges taking at face value information that may not be true. “That points to what may be a structural defect in the court: they are reliant on a single party, the government,” he said.

Reforms passed by Congress in 2015 created slots for friend-of-the-court lawyers, but they are called for in only select cases, often involving novel applications or technical issues that haven’t arisen before.

In her order, Collyer ordered the Justice Department to make a submission by Jan. 10 detailing what steps it was taking and plans to make sure the claims in surveillance applications accurately reflect the facts in the FBI’s possession.

President Donald Trump seized on the long-awaited inspector general report as evidence that the FBI unfairly targeted him and his campaign, although the surveillance of Page came after the campaign had officially cut ties with him. Trump rejected Horowitz’s conclusion that the opening of an FBI investigation on members of the Trump campaign was justified under the procedures in effect at the time.

The president also said the inspector general failed to turn up evidence of bias because he was appointed by President Barack Obama.

“There was tremendous bias and guilt exposed, so obvious, but Horowitz couldn’t get himself to say it,” Trump wrote on Twitter on Sunday. “Big credibility loss. Obama knew everything!”

FBI Director Christopher Wray has rejected the idea that bureau agents embarked on a political vendetta against Trump, but he has already promised major reforms to the handling of Foreign Intelligence Surveillance Act applications.

In a nod to the secrecy and one-sided nature of the court, such applications are supposed to be “scrupulously accurate,” but Horowitz found they were replete with errors in Page’s case. The Justice Department watchdog has opened an audit of other applications to assess how widespread the problems are.

The FBI said in a statement on Tuesday: “The Director has ordered more than 40 corrective steps to address the Report’s recommendations, including some improvements beyond those recommended by the IG. FISA is an indispensable tool in national security investigations, 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.”

Collyer’s new order notes that the Justice Department reported some “misstatements and omissions” to the court in July 2018, but she said the court became aware of most of Horowitz’s findings on the same day his report went public last week. She said the court was told in October and November of this year about Horowitz’s discovery that an FBI attorney apparently changed an email in a way that misled the court about Page’s relationship with another government agency, believed to be the CIA.

The judge said those disclosures triggered an order from the court about two weeks ago seeking a more detailed explanation about the cases that lawyer handled. That order remains classified, but Collyer insisted that it be reviewed for public release by Friday.

Collyer’s order did not indicate whether she was acting solely on her own behalf or whether she had consulted with the other judges before issuing it, but there is no doubt the court was under pressure from various quarters to make clear that it was grappling with Horowitz’s findings.

At a hearing with the inspector general week, Sen. Lindsey Graham (R-S.C.), chairman of the Senate Judiciary Committee, pleaded with the court to respond. He even suggested that the court might disappear if changes weren’t made.

“The FISA system has to be reformed,” Graham said. “To the FISA court, we’re looking to you to take corrective action. If you take corrective action, that will give us some confidence that you should stick around. If you don’t, it’s going to be hurtful to the future of the court.”