FBI officials involved in the wiretapping of former Trump campaign adviser Carter Page have been blocked, at least temporarily, from appearing before the Foreign Intelligence Surveillance Court (FISC) in regard to other cases, in rebuke that exceeded the remedial recommendations made by the independent monitor recently appointed by the court.
The decision by James E. Boasberg, chief judge of the secretive court created under the Foreign Intelligence Surveillance Act (FISA), comes as Congress faces a March 15 deadline on whether to renew three FBI national-security surveillance and investigative tools that were enacted after 9/11.
“FBI personnel under disciplinary review in relation to their work on FISA applications accordingly should not participate in drafting, verifying, reviewing, or submitting such applications to the Court while the review is pending,” Boasberg wrote. “The same prohibition applies to any DOJ attorney under disciplinary review, as well as any DOJ or FBI personnel who are the subject of a criminal referral related to their work on FISA applications.”
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In a 19-page ruling that can be read here, Boasberg also largely approved revisions that the FBI said it would make to its process for seeking wiretaps – in reaction to a damning report from DOJ Inspector General Michael Horowitz that detailed errors and omissions in applications to conduct surveillance on Page in 2016 and 2017.
Among the problems, Boasberg noted, were that the FBI had “omitted or mischaracterized” various “information bearing on [former British spy Christopher] Steele’s personal credibility and professional judgment.”
It was Steele’s unsubstantiated and largely debunked dossier that played a key role in the FBI’s warrants to surveil Page, but the FBI did not advise the FISC of “inconsistencies” in claims made by Steele’s sub-source and assertions made by Steele himself. The bureau also did not clearly disclose that the dossier was paid for by the Hillary Clinton campaign and Democratic National Committee (DNC).
Special Counsel Robert Mueller found no evidence to support a slew of Steele dossier claims, including that ex-Trump lawyer Michael Cohen traveled to Prague as part of a conspiracy with Russian hackers, that Page had received a large payment relating to the sale of a share of a Russian oil giant, that Russia was running a disinformation campaign through a nonexistent consulate in Miami, or that Russians possessed lurid blackmail material on the president.
“Omissions of material fact were the most prevalent and among the most serious problems with the Page applications,” Boasberg wrote. The judge pointed out that the inspector general had found that the FBI did not disclose to the court that it knew Page had a prior relationship with another intelligence agency from 2008 to 2013 — a period in which Page had voluntarily told the agency that he had contacts with Russians.
Instead, the FBI’s FISA application made Page’s Russian contacts seem furtive and undisclosed, even though Page had reported them.
Most egregiously, Boasberg noted, “when pressed by the FBI declarant about the possibility of a prior relationship between Page and the other agency during the preparation of the final application in June 2017, the FBI OGC [Office of General Counsel] attorney added text to an email from the other agency stating that Page was not a source.”
That apparently deliberate falsification of the FISA warrant evidence is believed to be among the subjects under review by Connecticut U.S. Attorney John Durham, who is analyzing all stages of the Page FISA and other matters in an ongoing criminal inquiry.
Moreover, the goverment also did disclose that it had “learned that Steele had been the direct source” of information in a September 2016 Yahoo News article, Boasberg said. That information could have “shed further light on his motivations,” even though the FBI did not expressly use the Yahoo News article to corroborate Steele’s claims.
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The Justice Department acknowledged in January that at least some of the Page warrant applications had fallen short of the legal standard required to continue surveilling him, known as the “probable cause standard.”
Horowitz earlier found that without the Steele dossier’s claims, there would have been insufficient evidence to pursue a FISA warrant for Page. (“We determined that the [FBI] Crossfire Hurricane team’s receipt of Steele’s election reporting on September 19, 2016 played a central and essential role in the FBI’s and Department’s decision to seek the FISA order,” Horowitz wrote.)
Also in January, David Kris, who has been appointed by the FISC to oversee the FBI’s proposed surveillance reforms, alerted the court that the bureau’s proposals were “insufficient” and must be dramatically “expanded” — even declaring that FBI Director Christopher Wray needs to discuss the importance of accuracy and transparency before the FISC every time he “visits a field office in 2020.”
But, Kris had not expressly called for the banishment of relevant FBI agents, and the DOJ had also declined to make such a recommendation.
Last month, Attorney General William Barr told Senate Republicans he would be taking action to clean up the errors and omissions cited by Horowitz and the DOJ.
“I think he’s going to take a lot of what Horowitz did and add his own stamp on it,” Sen. Lindsey Graham, R-S.C., said after a lunch meeting with Barr at the time.
Graham, chairman of the Senate Judiciary Committee who has been concerned with FISA warrant abuse, said Barr’s executive changes were “pretty comprehensive [and] very impressive.”
In his December report, Horowitz said four applications submitted to the FISA court, requesting approval to conduct surveillance on Page, presented an incomplete and inaccurate account of the evidence arguing for the surveillance – such as omissions of details that would have raised questions about FBI claims that Page was a Russian agent.
Horowitz found multiple instances in which the FBI did not follow its so-called “Woods Procedures” to independently verify facts presented by a third party. Instead, those facts were simply included in the FISA applications to monitor page.
Meanwhile, Joe Pientka — an FBI agent who Horowitz found was deeply involved in the Page FISA application process, as well as the bureau’s fateful interview with former national security adviser Michael Flynn — has been transferred to San Francisco and his name removed from the FBI’s website. Graham has recently sought to question Pientka, among others.
While many in the intelligence community call the FISA program vital for national security in the post-9/11 world, some in Washington have raised questions about potential encroachments on civil liberties and personal privacy.
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President Trump met with Republicans on Tuesday night regarding changes that could be included in revised FISA legislation that Trump could sign into law if approved by Congress this month, the Times reported. House Minority Leader Kevin McCarthy, R-Calif., then discussed the proposals on Wednesday with House Speaker Nancy Pelosi, D-Calif., according to the paper.
“McCarthy said that he thought he and Nancy Pelosi might come up with a package,” Sen. Graham told reporters Wednesday, according to the Times. “Well, if that happens, that’s a big breakthrough.”
Fox News’ Marisa Schultz and Chad Pergram contributed to this story.