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The Privacy Problems Revealed by the FBI’s Internal Review of the Trump-Russia Investigation

The inspector general’s report didn’t find any political motivations, but it did expose weaknesses in process for obtaining foreign intelligence surveillance warrants.

December 13, 2019

The report of the Department of Justice inspector general released on Monday confirms that neither the Russia investigation in general, nor the applications for Foreign Intelligence Surveillance Act (FISA) warrants against former Trump campaign adviser Carter Page in particular, were motivated by political bias against Donald Trump. That shouldn’t come as a huge surprise to anyone — despite what President Trump would have us believe, the FBI isn’t known for being a bunch of bleeding-heart liberals.

However, the report also shows that the FISA warrant applications to conduct surveillance on Page, as submitted to the secret FISA court, were full of inaccuracies and omissions. More specifically, the applications included erroneous or exaggerated factual claims supporting the government’s claim that it had probable cause to collect Page’s communications, while leaving out key facts that would cut against that claim.

The fact that these distortions were not motivated by political bias is perhaps the most relevant and sobering aspect of the report. If the Page FISA applications were handled just like any other — or perhaps even more cautiously, as some parts of the report suggest — that means this kind of sloppiness and application-padding is par for the course in the FISA process.

Congress passed the Foreign Intelligence Surveillance Act in 1978 to guard against improper domestic spying in the wake of Watergate scandal and revelations about the FBI’s targeting of civil rights and anti-war activists. Under the law, if the government wants to conduct surveillance of an American in a foreign intelligence investigation, it must show probable cause to the FISA court that the target is an agent of a foreign power. The process is “ex parte,” which means the court hears only from the government — and therefore relies on the government to submit accurate and thorough applications. The inspector general’s report shows that this system isn’t working very well.

Trump’s allies in Congress have expressed incredulity that the problems detailed in the report could be caused by anything other than animus against Trump. But the explanation is far simpler: once an investigation is opened, all investigators are “biased” in favor of that investigation being successful. They will be inclined to highlight facts supporting their theory of the case and downplay those cutting against it — not just in their applications for warrants, but in their own minds (what Julian Sanchez identifies as “confirmation bias” on Just Security). This is not proof of some nefarious motive; it is human nature.

In ordinary criminal investigations, there’s a check against this type of slant. Although the process of obtaining a criminal warrant is also ex parte, criminal investigations are geared toward bringing a prosecution, in the course of which the defendant will have an opportunity to challenge any warrant the government has obtained. By contrast, foreign intelligence investigations rarely result in a prosecution, and even when they do, courts have not allowed defendants to see the FISA warrant applications. FBI agents thus prepare FISA warrant applications knowing they will never be tested in an adversarial process.

There’s another key difference. The FISA court and the attorneys who practice before it are part of an elite club composed of a relatively small number of repeat players. According to DOJ officials, FISA applications are iterative processes, with court staff and DOJ lawyers in frequent and close contact. In that environment, it’s predictable that a trust relationship between FISA court personnel and DOJ lawyers will end up doing a lot of the work that should be done by meticulous preparation and review of the facts in the application.

In light of these dynamics, it’s critical to have strong procedures in place to ensure accuracy. The procedures in place at DOJ and the FBI are clearly insufficient to that end.

They are insufficient in other ways as well. Some additional aspects of the Trump-Russia investigation that troubled the inspector general — such as the FBI’s opening of the investigation without consulting senior DOJ officials — were entirely consistent with official policies. Those policies, as the inspector general found, make it far too easy for FBI officials to open investigations into First Amendment-protected activity and to employ intrusive techniques in those investigations.

These are systemic problems that have nothing to do with Trump’s paranoia about the “deep state.” The problem here isn’t that the FBI’s errors were based on political animus. The problem is that they weren’t, which means that other targets of FISA surveillance — ordinary people whose surveillance will never be leaked or generate inspector general reports or prompt declarations of outrage from members of Congress — are likely being surveilled based on similarly flawed applications. It also means that if FBI agents are sometimes motivated by bias, whether political, racial, or religious, existing procedures are unlikely to weed that out.

Fortunately, the inspector general recognized that the problems he found are systemic. His report recommends measures for improving the accuracy of FISA applications, along with strengthening internal oversight for investigations that touch on First Amendment activities. He also announced that he will be conducting an audit to examine the FBI’s performance more generally when it comes to FISA applications that target U.S. persons.

FBI Director Chris Wray has said he wants to implement the inspector general’s recommendations. Trump, however, is taking aim at Wray, so if past is prologue, Wray’s days might be numbered. If Trump’s allies in Congress are truly concerned about the FISA process, they should make clear to the president that Wray must be allowed to remain in his position and to implement the recommended changes.

They should also take a hard look at other FISA authorities that allow the government to collect information about U.S. persons. Three such authorities are scheduled to expire in March unless reauthorized, including Section 215 of the Patriot Act, which amended FISA to make it easier for the government to obtain telephone metadata and similar business records. Congress should not reauthorize these authorities without building in stronger protections for the rights of targeted Americans.

At bottom, what the inspector general’s report tells us is that Carter Page was almost certainly treated the same as, if not better than, any other American targeted under FISA. That’s what should worry us, and that’s where Congress should turn its focus now.