FBI And DOJ Personnel Confirm Agents Frequently Fudge Facts When Seeking FISA Warrants

from the respecting-the-fuck-out-of-the-rule-of-law dept

The fallout from the FBI’s highly-questionable Carter Page investigation continues. The problems first came to light in an Inspector General’s report which found the FBI did a lot of creative writing to continue its surveillance of Page, even after information came to light indicating the former Trump adviser was not operating on behalf of a foreign power.

The IG pointed out the FBI warrants relied on statements that were “inaccurate, incomplete, or unsupported by appropriate documentation.” If the FBI did this in the Page investigation, it could easily be assumed the FBI had done it in other cases utilizing the FISA court. The protections erected to protect American citizens from surveillance by their own government were rendered useless by FBI statements the Inspector General was too kind to call lies.

The FBI has been ordered to overhaul its FISA warrant process by the FISA court. The FBI has agreed to do so, while still trying to downplay its serious violations as a long string of one-offs that apparently dates back at least 30 years. A new report from Charlie Savage and Adam Goldman for the New York Times opens with the recounting of the same sort of material omissions by the FBI during its hunt for an alleged Russian mole in the CIA. In that case, agents did the same thing, adding and subtracting evidence to continue unjustified surveillance.

This is, apparently, how the FBI performs its FISA business — something acknowledged by the many agents and DOJ officials the reporters spoke to about the latest FBI/FISA fiasco.

The problems may be part of a broader pattern in other applications that never receive the same intense scrutiny, according to interviews with more than two dozen current and former F.B.I. agents and Justice Department officials who have worked with national security wiretaps. The system is vulnerable, they said, to lower-level agents suppressing or overlooking evidence that weakens their case when they seek permission to conduct surveillance.

The FBI is a law enforcement bureaucracy. Results are expected and no one gets participation trophies for investigations that go nowhere. To justify expenditures already on the books (and with an eye on funds not yet spoken for), agents have been adjusting narratives to ensure investigations keep running, even when the evidence appears to show there’s nothing worth investigating.

The time limits on FISA warrants add to the problem.

F.B.I. agents are also racing against a clock with FISA wiretaps — good for 90 days — which can also leave them open to confirmation bias, former officials said.

Once a wiretap is in place, Justice Department lawyers charged with seeking its renewal begin nagging F.B.I. agents to identify new facts gleaned from the wiretap that could help justify continuing it. But the lawyers are less insistent on finding facts that might instead undercut their suspicion, former officials said.

These all-too-human weaknesses haven’t been tempered by DOJ oversight or the FISA court. Since the court isn’t adversarial, it’s the FBI’s word against the FISA court’s judgment — and the Court is often flying blind, cut out of the loop by national security concerns even as it attempts to regulate the business of national security.

Perhaps unsurprisingly, the FBI didn’t feel its evidentiary cherry-picking was worthy of discipline. Fortunately, the Inspector General — who has long complained about the lack of cooperation from the DOJ components he oversees — referred one FBI official involved in the Carter Page surveillance efforts for criminal investigation.

The problems uncovered in the Page case aren’t just an FBI problem. They’re a law enforcement problem. Warrants are 90% boiler plate and 10% cherry picking, even during legitimate investigations. When investigations fail to uncover criminal activity, they can be artificially extended by omitting anything that might suggest the target isn’t the criminal law enforcement thinks they are. Unlike other criminal cases, FISA evidence is tough to challenge. Whatever isn’t obscured by parallel construction is hidden from the defendant (and possibly the judge) as being too “sensitive” to be discussed in open court.

The FBI’s habit of abusing its powers isn’t going to be reversed just because some of it has been made public. It takes meaningful oversight to make any changes stick. The current Inspector General takes his job seriously, but those above him in Congress often seem more concerned with political point-scoring than actually addressing the root cause of this abuse.

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Comments on “FBI And DOJ Personnel Confirm Agents Frequently Fudge Facts When Seeking FISA Warrants”

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27 Comments
Anonymous Coward says:

Re: If cherry picking doesn't work

You are focusing on the FISA court, and missing the larger picture. They got caught fudging things to the FISA court because someone finally paid attention, where it is hard to actually watch the sausage getting made.

… so where else are they fudging things, and not getting caught because people aren’t looking, or because judges are granting them a pass for "good faith"? If you aren’t answering "everywhere they think they can", you aren’t thinking clearly.

This comment has been deemed insightful by the community.
Koby (profile) says:

Unworkable

The problem with the FISA court is that it is a non-adversarial process. It’s done in secret, with no opposing lawyer, and no real oversight. The judges originally hoped that the system would be workable if the FBI lawyers were super-honest, but now we can see that mistakes will constantly be made until this court is shut down.

Scary Devil Monastery (profile) says:

Re: Unworkable

"The judges originally hoped that the system would be workable if the FBI lawyers were super-honest…"

This is just Poe’s Law biting hard, right? Or are you telling me there are judges out there who truly believe a non-adversarial court process regarding the oversight of theFBI was a good idea given ample historical evidence to the contrary?

This comment has been deemed insightful by the community.
Personanongrata says:

Rubber Stamp

Since the court isn’t adversarial, it’s the FBI’s word against the FISA court’s judgment — and the Court is often flying blind, cut out of the loop by national security concerns even as it attempts to regulate the business of national security.

The US Foreign Intelligence Surveillance Court (FISC) has acted as the US Department of Justice’s very own rubber stamp.

Since FISC’s inception in 1978 up through 2017 it has reviewed 41,026 Foreign Intelligence Surveillance Act applications while denying 85 for a rejection rate of .207%.

FISC acts in all manner as an ex parte star chamber where secret government evidence is presented and cannot be challenged by the accused.

https://epic.org/privacy/surveillance/fisa/stats/#background

bobob says:

Why should the court need the fbi to overhail ther warrant process? The court could easily just deny the applications which would be faster and more effective. Isn’t the court’s job to do exactly that, review warrants and decide whether or not to grant or deny them?

In some countries, there is a designated attorney with the proper clearance to represent the person for whom a warrant is applied. There is no reason we should not do the same.

ECA (profile) says:

Re: Re:

AC.
Ask your Grandma how it used to be with Social sec. to get something done..
5 Insurance agencies and any could say NOPE, you cant have your Leg fixed.
Only thing being paid for was the cost of insurance agencies, and still didnt cover everything.
Ever worked for a company that paid your insurance, but NOT if you were not working, and NOT Dental or Glasses??
If you look up who is who, most of the insurance agencies are owned by OTHER insurance agencies..strange isnt it, that you are paying for a couple 1000 people to decide if you get coverage.

Peter (profile) says:

It doesn't look so bad

If you look for the FBI’s perspective. A few low-level got creative so they could investigate a guy who they knew was guilty anyway.

It is absolute hell if you look from the perspective of the guy who got his life destroyed by the FBI throwing around unfounded allegations.

And it is a direct attack on the very foundations of democracy if we remember how the FBI meddled in the last presidential elections.

Checks and balances were introduced for a reason. The blatant abuse of its privileges by the FBI is more than enough evidence to bring them back. If they can not use the power of a "national security card" trumping the constitution, the national security option needs to taken away from the FBI.

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