The typically ultra-close-lipped Foreign Intelligence Surveillance Court slammed the FBI for mistakes it made in the Carter Page surveillance warrants and ordered the agency to detail how it will improve its warrant applications in light of the errors, uncovered recently by the Justice Department’s inspector general.
The order is a startling departure from the court’s typical comprehensive secrecy as it reviews from federal investigators requests for warrants related to foreign intelligence.
The public statement on Tuesday from its presiding judge appears to nod to growing criticism that the warrant-application process has become lax or lacks transparency. Groups such as the American Civil Liberties Union have sought more public disclosure of the court’s actions to prevent the abuse of Americans’ rights for years, and Sen. Lindsey Graham, a South Carolina Republican, last week said he believed the court should be reformed in light of the inspector general report.
“The FBI’s handling of the Carter Page applications, as portrayed in the [Office of the inspector general] report, was antithetical to the heightened duty of candor described above. 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,” federal Judge Rosemary Collyer wrote in an order from the court published Tuesday.
The FBI has until January 10 to respond. It’s unknown at this time if that response will be made public, since correspondence with the court is often classified.
The court said it plans to make another order related to the Page warrants public in the coming days.
The FBI, inspector general Michael Horowitz found, had changed or withheld significant information used to build its application to surveil Page. The FBI attorney who changed the information is now under criminal investigation.
Collyer called these “troubling instances.”
The court specifically noted on Tuesday new information that should have cast doubt within the FBI about the accuracy of ex-British spy Christopher Steele’s dossier on Donald Trump and Russia, which was cited in the Page warrant.
The FBI withheld information “which was detrimental to their case for believing that Mr. Page was acting as an agent of a foreign power,” Collyer wrote.
Four judges on the foreign surveillance court, because of the FBI’s representations, had signed off on surveillance warrants of Page in October 2016 and in 2017, after he served on the Trump campaign as a foreign policy adviser.
The FBI has already pledged to the Justice Department watchdog that it is taking steps to fix its process. But a court’s oversight would be an additional check on the process.
“As (FBI) Director (Christopher) Wray has stated, the Inspector General’s report describes conduct by certain FBI employees that is unacceptable and unrepresentative of the FBI as an institution,” the FBI said in a statement to CNN on Tuesday. “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.”
In a response included in the inspector general report, Wray described more than 40 steps the FBI was taking to address recommendations made by the Horowitz, including changes to make the processes for seeking FISA warrants “more stringent and less susceptible to mistake or inaccuracy.”
“We are vested with significant authorities and it is our obligation as public servants to ensure that these authorities are exercised with objectivity and integrity. Anything less falls short of the FBI’s duty to the American people,” Wray wrote.
Among the changes are a plan by the FBI to supplement FISA request forms with new questions, including a checklist that will direct agents to collect all relevant details and remind them to “err on the side of disclosure.” New layers of oversight were also added for the use of reporting derived from an FBI informant that is included in the requests.
The FBI will also turn the findings of the watchdog report into a case study so agents can analyze each step of the Page application and its renewals to ensure that “mistakes of the past are not repeated.”
The Washington-based federal court was created by Congress in 1978, but until recent years had kept much of its business confidential. Congressional disclosures prompted the previously unprecedented release of the Page foreign surveillance warrant applications, and has allowed critics of the court and of the FBI’s early Russia investigation to scrutinize the court’s decisions to authorize the surveillance four times.
“I’m a pretty hawkish guy, but if the court doesn’t take corrective action and do something about being manipulated and lied to, you will lose my support,” Graham said when Horowitz testified in the Senate last week.
Horowitz is due back on Capitol Hill Wednesday to testify about his recent findings before the Senate Homeland Security and Governmental Affairs Committee.
This story has been updated with additional developments.