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.

Filed Under: doj, fbi, fisa, fisa court, fisc, warrants


Reader Comments

Subscribe: RSS

View by: Time | Thread


  1. identicon
    Kevin Parker, 28 Feb 2020 @ 11:11am

    FBI is always spying on the USA government as well as every citizen in the USA. But they are giving the total protection, that's why they are seeking for problems and solving them with ease.

    reply to this | link to this | view in thread ]

  2. icon
    kag (profile), 28 Feb 2020 @ 11:12am

    FISA

    No, Tim, they were an Obama administration problem. I find it hard to believe that McCabe and company did this without the AG being aware of this.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, 28 Feb 2020 @ 11:39am

    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.

    and the IG didn't even need to invent or suppress evidence to justify this investigation!

    reply to this | link to this | view in thread ]

  4. icon
    ECA (profile), 28 Feb 2020 @ 11:43am

    I dont mind

    A little fudge isnt to bad
    It gets me where Im going,
    Right to the ice cream..

    reply to this | link to this | view in thread ]

  5. identicon
    Sok Puppette, 28 Feb 2020 @ 12:16pm

    "Fudge facts"

    I believe you misspelled "commit knowing perjury, intentionally withold salient information, and otherwise commit deliberate frauds upon the court".

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, 28 Feb 2020 @ 12:30pm

    If cherry picking doesn't work

    FBI lawyers are more than willing to alter evidence.

    It is long past time to get rid of FISA.

    reply to this | link to this | view in thread ]

  7. icon
    ECA (profile), 28 Feb 2020 @ 12:30pm

    Re: "Fudge facts"

    I'd like abit more Chocolate with that, please..

    reply to this | link to this | view in thread ]

  8. icon
    Koby (profile), 28 Feb 2020 @ 12:49pm

    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.

    reply to this | link to this | view in thread ]

  9. identicon
    Personanongrata, 28 Feb 2020 @ 1:51pm

    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

    reply to this | link to this | view in thread ]

  10. identicon
    Anonymous Coward, 28 Feb 2020 @ 2:27pm

    Re: If cherry picking doesn't work

    That is exactly why they do not want recordings made of their interviews. If it is their word against yours, you lose even though they have been proven to be unreliable over and over.

    reply to this | link to this | view in thread ]

  11. identicon
    Anonymous Coward, 28 Feb 2020 @ 2:30pm

    Re: Rubber Stamp

    The entire FISA court is unconstitutional and violates so many of our rights it isn't even funny. It is the rubber stamp that keeps the NSA and other agencies busy reading your emails.

    reply to this | link to this | view in thread ]

  12. identicon
    bobob, 28 Feb 2020 @ 5:29pm

    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.

    reply to this | link to this | view in thread ]

  13. identicon
    Anonymous Coward, 28 Feb 2020 @ 8:16pm

    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.

    reply to this | link to this | view in thread ]

  14. icon
    Mike Masnick (profile), 28 Feb 2020 @ 10:32pm

    Re: FISA

    It has been the case throughout administrations. This isn't the place for partisan nonsense.

    reply to this | link to this | view in thread ]

  15. icon
    ECA (profile), 29 Feb 2020 @ 1:38am

    Re: If cherry picking doesn't work

    But,
    Can I have Cherry on my Fudge and ice cream??

    reply to this | link to this | view in thread ]

  16. icon
    ECA (profile), 29 Feb 2020 @ 1:40am

    OK, OK times up..

    The Ultimate fudge..

    Milk, Milk,
    Lemonade..
    Round the corner and fudge is made..

    reply to this | link to this | view in thread ]

  17. identicon
    Anonymous Coward, 29 Feb 2020 @ 1:50am

    But trust the government to dole out our healthcare, sure buddy.

    reply to this | link to this | view in thread ]

  18. identicon
    sambo tambo, 29 Feb 2020 @ 3:26am

    stupid court of idiocy

    the fbi need a good smacking down permanently, they all need to be killed all over their body hard.

    fbi are greedy arrogant pigs and should be shut down too.

    american governement needs to be shut down also.

    reply to this | link to this | view in thread ]

  19. identicon
    Anonymous Coward, 29 Feb 2020 @ 5:15am

    Acronyms Matter

    More of a Federal Investigative Bureau thing then?

    reply to this | link to this | view in thread ]

  20. icon
    Peter (profile), 29 Feb 2020 @ 8:40am

    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.

    reply to this | link to this | view in thread ]

  21. identicon
    Fearless Fosdick, 29 Feb 2020 @ 12:26pm

    Collect your winnings at the track Mr. H

    The fibbers were created to investigate the murders I’d oil rich native amerindians in Oklahoma during the 1920s John Edgar Hoover style, the well spoken Perv In Chief.

    Upshot. Nada.

    And so it has been ever since, except for partnering with Mafiosos and assassins to shape and shake...

    reply to this | link to this | view in thread ]

  22. icon
    ECA (profile), 29 Feb 2020 @ 12:43pm

    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.

    reply to this | link to this | view in thread ]

  23. icon
    ECA (profile), 29 Feb 2020 @ 12:45pm

    Re: stupid court of idiocy

    Not really, lets just Push it back to the point that our Congress ISNT PAID FOR..
    THEY ARE EMPLOYEES, and they should justify what they do, Just as WE NEED TO..
    Let them send out a List of things they DID for you and your state, and YOU get to decide if they get paid 4-10 times as much as you made.

    reply to this | link to this | view in thread ]

  24. identicon
    FBI target, 1 Mar 2020 @ 7:39am

    Re:

    The big secret is that FBI is enabling CIA/DOD traffic cling of innocent citizens into Darpa/DOD barbaric experiments. FISA needs to be shut down — they are hiding crimes against humanity behind the warrants.

    reply to this | link to this | view in thread ]

  25. identicon
    Anonymous Coward, 2 Mar 2020 @ 5:44am

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

    All Police Departments Confirm Agents Frequently Fudge Facts When Seeking Warrants

    FTFY

    reply to this | link to this | view in thread ]

  26. icon
    Scary Devil Monastery (profile), 2 Mar 2020 @ 7:55am

    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?

    reply to this | link to this | view in thread ]

  27. identicon
    TRX, 2 Mar 2020 @ 10:43am

    fudge facts

    Lying on a warrant is perjury.

    One law for them, another for you, prole.

    reply to this | link to this | view in thread ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Close

Add A Reply

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Insider Shop - Show Your Support!

Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it
Close

Email This

This feature is only available to registered users. Register or sign in to use it.