The chief judge on the Foreign Intelligence Surveillance Court has barred Justice Department and FBI officials under review for wiretapping former Trump-campaign adviser Carter Page from appearing before the Court.
In a 19-page opinion, Judge James E. Boasberg ordered that “FBI personnel under disciplinary review in relation to their work on FISA applications accordingly should not participate in drafting, verifying, reviewing, or submitting such application to the Court while the review is pending.” He added that any “DOJ or FBI personnel under disciplinary or criminal review” are also prohibited from working on FISA applications.
Boasberg also called for a higher bar in regards to the disclosure of exculpatory evidence, and ordered agents to swear in future cases that any FISA warrant application contains “all information that might reasonably call into question the accuracy of the information or the reasonableness of any F.B.I. assessment in the application, or otherwise raise doubts about the requested findings.”
DOJ inspector general Michael Horowitz detailed in his December report on the FBI’s “Crossfire Hurricane” investigation how the Bureau knowingly omitted details of Page’s prior working relationship with the CIA, as well as numerous potentially exculpatory statements he made to other sources, which undercut the Steele Dossier’s allegations used in the FBI’s warrants.
Horowitz also described how “FBI officials at every level” — including former deputy director Andrew McCabe and former director James Comey — reached a consensus that Steele was a reliable source, despite overhead concerns that his allegations could be biased given that he had been contracted by the Democratic National Committee through the research firm Fusion GPS.
Boasberg said, “The frequency and seriousness" of the errors found by the DOJ independent watchdog "called into question the reliability of the information proffered in other FBI applications."
The judge gave begrudging credit to DOJ and the FBI for admitting process deficiencies and working to improve procedures. Boasberg, however, faulted DOJ, saying in his decision “the errors the OIG pointed out cannot be solved through procedures alone” and that everyone at the DOJ and FBI “must fully understand and embrace the heightened duties of probity and transparency” in the secret court proceedings.
Horowitz recommended that the FBI conduct performance reviews of all employees in the chain of command who had responsibility for the FISA applications. Wray pledged to take appropriate disciplinary action and vowed individual accountability while Boasberg reiterated his order.
FBI applicants and DOJ attorneys will now be required to affirm, "To the best of my knowledge, this application fairly reflects all information that might reasonably call into question the accuracy of the information or the reasonableness of any FBI assessment in the application, or otherwise raise doubts about the requested findings.”
Boasberg also ordered the FBI to provide it with a copy of its updated confidential human source checklist, a description of the specific responsibilities that FBI Office of the General
Counsel lawyers have during the FISA process, and a report on any other proposed FISA reforms by later this month.
The judge noted two controversies were advancing on a “separate track” and were not addressed in much detail in the Wednesday opinion. Those controversies comprise scrutiny of all the filings touched by FBI lawyer Kevin Clinesmith and a review of the government’s handling of the intelligence gleaned through the Page FISA monitoring.
Clinesmith, who altered a document in FISA filings to say Page was “not a source” for the CIA when he was, is the only person publicly known to be under criminal investigation by U.S. Attorney John Durham, who is conducting a review of the Russia investigation.
The Justice Department said at least the final two of four Page FISA warrants were “not valid” and that the FBI sought to “sequester” the information obtained from that surveillance.
Wray testified that the behavior of some in the DOJ and the FBI was “utterly unacceptable” and agreed that there had been at least some illegal surveillance. He said he was working to “claw back” the FISA information.
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