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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.