Two Possibilities in Trump Wiretapping, and Neither Is Good
The report of the I.G.'s findings on the use of FISA in the FBI Crossfire Hurricane investigation is an outrage. As a 22 year FBI Agent, I have personally conducted multiple investigations using both Title III "wiretaps" and FISA authorized intercepts. From this perspective, I can only see two possible interpretations of the actions of the FBI and DOJ. Either scenario should anger and frighten every fair minded citizen who takes the time to read the report and understand its implications. To comprehend the magnitude of the wrongdoing, consider the following:
First, an American citizen, Carter Page, was targeted by our government for electronic surveillance under FISA (Foreign Intelligence Surveillance Act). Per the Act, his Fourth Amendment guarantee of privacy was judicially "suspended" to allow law enforcement to intercept and monitor his private communications. Ostensibly, the FISA court would allow this intrusion based on presented facts that indicated that Page was participating in an activity that was reasonably considered to be a threat to national security and was, in effect, the agent of a foreign power.
According to the I.G., the determination to surveil Page was based on second hand information provided by a member of a friendly foreign government and bolstered by reporting in the "Steele dossier". Accepting the subjective judgement that the investigation was adequately predicated does not mitigate the disaster that followed.
Typically, a FISA warrant is issued to target a foreign national and, in general, the resulting intercepts come largely from overseas communications. FISA generally requires a lower evidentiary threshold than a "Title III wiretap" (used to intercept and monitor communications in domestic criminal matters). To use a FISA surveillance against a US citizen is a somewhat exceptional step. Basically, it negates Constitutional protections afforded to all Americans based on the judicial determination that the citizen is acting as an agent of a foreign power.
Because electronic surveillance (wire tap) is so intrusive, it is rightfully subject to intense judicial scrutiny. Additionally, because the evidence gathered in its use is singularly effective, law enforcement in general, and the FBI and DOJ in particular, scrupulously protect the integrity of the process. No law enforcement officer of any worth would stand before a judge and swear to an affidavit that he or she suspected was not completely true and accurate. No competent supervisory chain of command would permit that to happen. To risk the loss or restriction of that invaluable tool would be unacceptable.
In the course of my FBI career, I have authored multiple affidavits in support of "wire tap" investigations. Among these cases were investigations of sufficient profile to be included in the daily briefing of then Director Mueller (as well as to entities at the Pentagon, Department of State and to the White House). In every case, as I stood before the judge to obtain the authorization to conduct the wire tap, my supporting affidavit had been checked, rechecked, and approved by (at a minimum) the principal legal advisor at my field office, the line prosecutors at the US Attorneys Office for the appropriate jurisdiction, DOJ attorneys at the Office of Enforcement Operations at Main Justice, and program managers, legal counsel, and Division heads at FBI Headquarters.
My point in describing this process is to illustrate the exhaustive and thorough review to which these (non headline generating) investigations are rightly subjected. Although many of my cases were relatively high profile, they all pale in comparison to the "once in a lifetime" historical magnitude of the Crossfire Hurricane case.
The implications of intercepting the communications of a U.S. citizen who is associated with the political campaign of a candidate seeking the presidency rings nearly every "bell" in the FBIs and Attorney General's Guidelines for sensitive investigations. As discussed in the IG report, by regulation, these cases cannot be initiated without the written approval of the Director and the Attorney General. In addition to the approval obviously granted by the Director and AG, the IGs report identified the following additional high level officials who reviewed and approved the Page FISA affidavit: "NSD's Acting Assistant Attorney General, NSD's Deputy Assistant Attorney General with oversight over 01, 01's Operations Section Chief and Deputy Section Chief, the DAG, Principal Associate Deputy Attorney General, and the Associate Deputy Attorney General responsible for ODAG's national security portfolio."
The suggestion that somehow, seventeen significant errors, omissions of fact, falsehoods, or deliberate misrepresentations made their way into a FISA affidavit/s (accidentally, at the hand of an anonymous case agent) and then were not immediately noted and corrected throughout the course of this exceptional review process is simply not believable. To further strain credulity, we are asked to believe that during the renewal process, which happened THREE times, no one involved in the process noticed that there was no inculpatory evidence being generated by the intercepts. Keep in mind, Page's communications were continuously monitored for approximately eleven months.
In order for the intercepts to continue after the initial authorization period, the FBI Director and the Acting/Attorney General themselves had to review the "fruits of the wire", judge them to be investigatively significant, and determine that there was adequate justification to continue to "spy on" Carter Page. By signing off on the renewals, they were certifying to the FISA judge that they found the Page intercepts were producing evidence of an ongoing national security threat. The fact that they allowed an unnamed FBI Agent to swear to the renewal affidavits doesn't relieve them of their responsibility for the outcome nor does it allow for the "I can't be aware of every aspect of the case" excuse.
Based on what we are told by the I.G., there are only two possible conclusions that can be reached regarding the official conduct of those responsible for infringing on Carter Pages Constitutional freedoms:
The first is that the hand selected team of investigators, attorneys, and Senior Executive Service officials with decades of law enforcement, administrative, and judicial experience were abject failures at a task that they were hired to perform. Speaking from personal experience, in FBI, DEA, and state and local wire tap investigations, the slightest omissions, misstatements, and clerical errors are routinely identified and corrected by the street agents and line prosecutors who do these investigations for a living. To believe that a "varsity level" team, with unlimited time, support, and resources, somehow inadvertently overlooked seventeen major omissions, misstatements, and/or outright falsehoods, is simply not believable.
The second possibility is that nearly everyone who significantly participated in obtaining FISA coverage on Page knowingly and deliberately operated outside the law to one degree or another. The reasons behind the decision to do so are irrelevant. The particulars regarding the seventeen I.G. findings are startling, taken individually. It's difficult to see how any of the individual omissions or misstatements could have happened accidentally. Viewed collectively, the apparent intentionality is nearly impossible to reconcile as anything but corruption.
In light of the I.G findings, the presiding FISA court judge seems to have come down on the side of intentional abuse. In a recent court order, Judge Rosemary Collyer gave the FBI until January 10 to explain to the court why the FBI should be allowed to continue to utilize FISA. The statement that the FBI "withheld material information" and that "FBI personnel misled NSD" suggests that the judge isn't buying the "series of unfortunate events" excuse peddled by prominent figures in defense of the indefensible.
Whichever explanation seems more likely, the end result should be infuriating to every American. Either your nation's premiere law enforcement agency was breathtakingly incompetent when the stakes were the highest, or select officials in that organization made deliberate decisions to break the law, undermine the Constitution, and illegally spy on a fellow American. Either possibility has deeply damaged the reputation of the FBI and DOJ in addition to the reputations of thousands of honest FBI Agents and DOJ attorneys. Despite the legitimate concerns of civil libertarians, the FISA process has indisputably proved an invaluable resource in safeguarding the country from terrorism. If the heinous abuses documented in the I.G.s report result in a weakening or loss of FISA, we will all be the worse for it. If those responsible are not held to account, this will happen again. There is no happy face to put on this episode.
The author is a 1983 graduate of the U.S. Naval Academy. He served for over 22 years as an FBI special agent, supervisory special agent, and FBI SWAT team leader.