Everyone is entitled to his own opinion, but not to his own facts.
--Daniel Patrick Moynihan

December 18, 2019

The FBI and the Trouble With Secret Warrants

By David K. Shipler

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.
--The Fourth Amendment to the US Constitution
 The FBI, yet again, lied to the court, whose chief judge didn’t do her job properly and then excoriated the FBI. Republicans, who enacted and defended the secret system that permits such abuse, are suddenly in high dudgeon since the victim is one of their own. That’s the brief summary of the controversy over surveillance done on Carter Page, a campaign aide to Donald Trump. Whether something good comes out of the episode is an open question.
  There are basically two legal ways for the government to listen to your phone calls, read your emails, search your house, and invade other areas of your private life. One is with a traditional search warrant, signed by a judge after law enforcement swears that probable cause exists to believe that certain evidence of a specific crime will be found at a particular place and time. The other is with a secret court order under the Foreign Intelligence Surveillance Act (FISA), which requires something quite different: probable cause that you are an agent of a foreign power, meaning either a government or a terrorist organization. No crime need be involved, and the standard of particularity is largely waived.
                Other differences are notable. In a criminal case, the warrant is eventually disclosed and might be presented to the target at his door if he’s home as police arrive to do the search. He ultimately learns details of the searches. Theoretically, he should be able to see the affidavit on probable cause that the police submitted to the judge, so his lawyer can challenge the warrant’s basis and move in court to suppress the resulting evidence. However, in the experience of Richard Foxall, a defense attorney in California, judges rarely allow the defense to inspect the affidavits. (See Foxall's comment below.) That check on law enforcement doesn’t prevent all official wrongdoing, but it helps.
                No such transparency exists in FISA warrants. Not only are they issued in secret by judges in a secret court, they are executed without notice to the target and are never disclosed unless the government chooses to use the resulting evidence in a criminal trial, and even then the affidavits themselves are usually considered classified. Occasionally the FISA material is used as a basis for an ordinary criminal warrant, but defense lawyers are usually blocked from seeing the original application.
Sometimes the FISA warrants are pried into the open through a lawsuit. Or, in the case of   Carter Page, when the FBI screws up so royally that the Justice Department’s inspector general is prompted to investigate the investigators.
                It was that secret FISA system through which government aimed its powerful monitoring apparatus at Page. And it was that process that the FBI abused, according to the inspector general, Michael E. Horowitz, who uncovered 17 misstatements and omissions in the warrant applications. These were not just careless errors, and they were much more than the “gross incompetence and negligence” that Horowitz called them. They gave every appearance of being deliberate distortions aimed at strengthening investigators’ argument to the court that Page was probably a Russian agent.
Nor was this incident isolated. We’ve seen it before. It seems to reflect a culture of intellectual dishonesty among investigators who are so zealous that they filter out facts that undermine their theory of a case. That has undoubtedly led to the wrongful surveillance of innocent Americans by an opaque, clandestine system. Horowitz “has already begun an audit of other FISA applications,” Charlie Savage reports in The New York Times.
Significantly, a remedy exists in law that might curtail the practice, if federal judges would only use it.  That is the provision for an amicus curiae (friend of the court), an independent lawyer to defend privacy and civil liberties before the secret surveillance is approved. But judges hardly ever invite those amici into the closed hearings, and there is no indication that one was present when warrants were issued in Page’s case. In fact, according to a footnote in the Horowitz report, no hearing was even held before the chief judge of the Foreign Intelligence Surveillance Court, Rosemary Collyer, signed off on the initial application.
Collyer, obviously feeling burned, has issued a public order to the FBI to shape up—specifically, to “inform the Court in a sworn written submission of what it has done, and plans to do, to ensure that the statement of facts in each FBI application accurately and completely reflects information possessed by the FBI that is material to any issue presented by the application.” But she takes no responsibility on herself and makes no mention of using outside lawyers to create an adversarial proceeding that might test the government’s assertions.
After years of extensive surveillance following 9/11, Congress created the amicus system in the 2015 Freedom Act, requiring a pool of at least five such lawyers with security clearances to stand ready to participate in those warrant hearings. The lawyers have been named, but few have been called. Of more than 1,500 cases heard in 2016, only one amicus was appointed by a judge, none in 2017 for nearly 1,600 cases, and just nine in 2018 for 1,651 applications involving 1,833 targets, including 232 Americans.
Typically, then, no competing information about the person being targeted comes before the judge, who sees only what FBI agents and Justice Department attorneys present. Eleven federal judges, appointed by the Chief Justice of the Supreme Court do rotating duty on the FISA court; each one can ask probing questions, reject applications in whole or in part, and modify orders. But the statistics aren’t reassuring: out of the 1,651 applications in 2018, only 30 were completely denied, 42 rejected in part, and 261 modified. We now know that the low rate of rejection is not because the Justice Department’s affidavits are flawless.
To do the surveillance on Carter Page, the FBI had to convince the court that there was probable cause to believe that Page was an agent of a foreign power, i.e. Russia. But in making that assertion to get the original warrant and then in three renewals, officials rewrote, distorted, and omitted important facts.
For example, an FBI attorney doctored an email from the CIA that might have neutralized suspicion about Page, whose past contacts with Russian intelligence officers figured in the probable-cause assertion. But it turned out that Page had been reporting to the CIA, which told the FBI that he had been “an operational contact.” That was left out of the original warrant application. To renew the warrant after it expired, an FBI lawyer altered an email from the CIA and made it read that Page was “not a source.”                
Agents hid questions about the reliability of reports from the former British spy Christopher Steele that Russia had compromising information on Trump, both financial and sexual. These formed a key basis for the warrant applications, which exaggerated Steele’s credentials—crediting him incorrectly with contributing significantly to an early criminal prosecution. The FBI also failed to inform the court that he had probably been hired indirectly by the Hillary Clinton campaign or the National Democratic Committee.
The FBI’s filings did not mention that Steele’s primary source, in an FBI interview, had contradicted “multiple sections of the Steele reports, including some that were relied upon in the FISA applications,” according to Horowitz’s investigation. Nor was the court told that the source disputed Steele’s report that a “well-developed conspiracy” existed between Russia and the Trump campaign. Instead, the FBI described the source as “truthful and cooperative,” leaving the impression that the person “had corroborated the Steele reporting.” And so on.
                All those defects in the applications strengthened the impression of Page as a Russian agent. He was placed under government monitoring for 11 months, in precisely what way the public does not know, because—except for the generic term “electronic surveillance”—the specific intrusions are blacked out in the inspector general’s report. Such warrants may authorize agents to plant bugs and cameras in homes and offices; sneak into houses to do secret physical searches; collect the content of phone conversations, emails, and texts; and monitor credit-card transactions, a person’s movements, and the like.
                FISA was enacted in 1978 as an innovative attempt to regulate domestic intelligence-gathering in the wake of revelations that the FBI, the CIA, the Defense Intelligence Agency, and other arms of the government had been spying on Americans for their political views—on civil-rights leaders, labor leaders, anti-war activists, and others.
                Until Sept. 11, 2001, the law might have worked pretty well. But after planes were flown into the World Trade Center and the Pentagon, Congress hastily loosened it through the Patriot Act. Where the law initially permitted sweeping surveillance only for “the purpose” of gathering foreign intelligence rather than evidence for criminal prosecution, the Patriot Act changed it to “a significant purpose.” That allowed criminal investigation to become the leading motive for acquiring secret and sweeping surveillance powers—an end run around the strict requirements of the Fourth Amendment.
                Erroneous assertions in affidavits submitted to the FISA court surfaced in 2000, when the Justice Department admitted to misstatements in 75 applications after the secret court published an unusual opinion on “the troubling number of inaccurate FBI affidavits.” One agent was banned entirely from submitting affidavits, and the FBI tightened its rules—some of which were then violated in the Page case.
                In 2004, after the wrongful arrest of Brandon Mayfield, an Oregon lawyer whose fingerprints were mismatched with those on a bag of detonators after trains in Spain were bombed, a lawsuit by Mayfield unearthed FISA warrants that displayed the FBI’s capacity for malicious self-delusion.
                After sneaking into his house and law office, possibly planting bugs, and rifling through files protected by attorney-client privilege, FBI agents spun innocent facts into sinister “evidence.” A home computer had been used to research flights to Spain, rental housing there, and Spanish railroad schedules. Very suspicious. But those searches were merely part of his 12-year-old daughter’s school assignment to plan a fictitious vacation. A note in her journal, which agents thought was Mayfield’s, contained a criticism of US bombing in Afghanistan. A phone number in Spain was found written down: the clincher, except that it was the number of an exchange program being considered for their son.
                Best of all in this gathering web of FBI fantasy was the discovery that Mayfield’s passport had expired, and there was no record of his leaving the country in the previous 10 years. This information could have been discovered without a FISA warrant, but what happened next illustrates the mindset of the investigator. He made up a scenario and swore to it in his affidavit: “Since no record of travel or travel documents have been found,” the FBI agent wrote, “it is believed that MAYFIELD may have traveled under a false or fictitious name, with false or fictitious documents.”
                Based on the fingerprint mistake and the secret warrant, Mayfield was headed straight for prison. He was saved only by the Spanish National Police, which kept insisting that his fingerprint was not a match, and which finally found its real owner, the real terrorist. But his law practice was severely damaged. His lawsuit was settled by the Justice Department for $2 million of taxpayer money.
                 To grasp the magnitude of our departure from founding principles, we have to go back to the beginning, that is, to the Fourth Amendment. It was drawn up as a rebuff to the British practice, under writs of assistance, to search entire villages for contraband—an odious habit that enraged colonists and helped light the fire of revolution.
 “A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle,” argued James Otis on behalf of Boston merchants in 1761. “This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court may inquire.”
                The technology is new, but the principle is the same.


  1. Sadly, this kind of deception is often used by investigators in both state and federal systems even when it is totally unnecessary, as it was here. It's very likely the FISA court would have granted the warrants without the decei; the re-applications were granted because the results were adding to the PC. You cannot justify an initial warrant by the results it produces if it did not meet the standards for issuance in the first place, of course. Carter Page actually handed the FBI lots of information for probable cause in public talks he gave in Russia, and as the result of conversations that had been picked up between Russian intelligence officials.

    But I think there's another, very important point to be made: Even in the regular warrant situation, and even in state courts, the affidavit behind the warrant is often never made available to the defense. (For readers: I'm a criminal defense attorney practicing in California. See the acknowledgements to "Rights of the People" or "Rights at Risk.") Investigators can seek to seal the affidavit, and judges frequently rubber stamp the application to do so. When government investigators lie, omit, misstate facts, they are rarely caught and when caught almost never receive significant punishment. The target of the investigation only knows about the service of a warrant where police enter premises or detain and search them--they do not learn about warrants for wiretaps, bank records, cell phone data, etc, until they are charged. If the affidavit was sealed, the burden will be on the defense to move to unseal it, a motion rarely granted by courts. If their phone calls are with persons who call them from jails, prisons or other detention facilities, both sides are recorded without any warrant at all. Judges have approved all of these gambits and continue to act, in many instances, as enablers of violations of the Constitution. Their credulity astounds. Having "amicus" in the room with an opposing point of view might be one answer to the problem.

  2. Richard, these are excellent points, and I'll admit that I did not know how hard it was for defense attorneys to see the affidavits in ordinary criminal cases. In a sense, the FISA abuses reflect an additional step from the abuses in the criminal justice system. Thanks for posting this comment.