Politics & Policy

A Foreign Power’s Recruitment Effort Is Not a Basis for a FISA Court Warrant

Carter Page at a presentation in Moscow, Russia, in 2016. (Sergei Karpukhin/Reuters)

My column that posted last night is an in-depth analysis of the Schiff memo, the response of House Intelligence Committee Democrats to the Nunes memo published by committee Republicans. I offer a variety of reasons why the response principally proffered by the committee’s ranking member, Representative Adam Schiff (D., Calif.), fails to defend the issuance of FISA court surveillance warrants against an American citizen tied to the Trump campaign, Carter Page, in a counterintelligence investigation seeking to probe suspected ties between Donald Trump and Russia. The warrant was issued based on uncorroborated hearsay allegations from unknown sources, compiled in the so-called Steele dossier. The FBI and Justice Department failed to disclose that these allegations were generated by an opposition-research project commissioned by the Hillary Clinton campaign and the Democratic National Committee.

As I argue in the column, the Schiff memo leaves no doubt that the key allegation supporting issuance of the warrant is the Steele dossier’s claim that, while on a well-publicized trip to Moscow in July 2016, Page met with two top Putin regime operatives, Igor Sechin and Igor Divyekin. Page credibly denies the meetings; former British spy Christoper Steele’s claim that they happened is based on unidentified hearsay sources that he concedes he never confirmed; and all indications are that the FBI never corroborated them. In congressional testimony, Former FBI director James Comey described the dossier’s allegations about Donald Trump as “salacious and unverified.” Furthermore, according to a memo published by two senior Senate Judiciary Committee members — Chairman Charles Grassley (R., Iowa) and Senator Lindsey Graham (R., S.C.) — then-director Comey conceded that the Bureau did not corroborate Steele’s sources and relied on the fact that Steele had given the FBI reliable information in the past. (See Grassley-Graham memo, p.2.)

At the Washington Examiner, Byron York picks up on something I wish I had highlighted: The Schiff memo’s focus on past Russian intelligence efforts (in 2013) to recruit Page to become an agent for Russia. As Byron notes, the Schiff memo claims that “Steele’s information about Page was consistent with the FBI’s assessment of Russian intelligence efforts to recruit him and his connections to Russian persons of interest.”

The fact that a foreign power is trying to recruit an American to become an agent for that foreign power is not a sufficient basis to issue a surveillance warrant against the American under FISA. It would, of course, be sufficient to issue a warrant against the foreign spies who are making the recruitment efforts, but it is not enough for a warrant against the American citizen who is the target of the recruitment effort.

To get a surveillance warrant under FISA (i.e., the Foreign Intelligence Surveillance Act of 1978, as codified at Title 50, U.S. Code, Sections 1801 et seq.), the FBI and the Justice Department must establish probable cause that the person to be monitored under the warrant is acting as an active, purposeful agent of a foreign power — not that the foreign power hopes to turn him into such an agent.

FISA defines “agent of a foreign power” — as that term is applicable to “U.S. persons” (i.e., American citizens and permanent-resident aliens) — as a person who: 

(A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;

(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;

(C) knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power; 

(D) knowingly enters the United States under a false or fraudulent identity for or on behalf of a foreign power or, while in the United States, knowingly assumes a false or fraudulent identity for or on behalf of a foreign power; or 

(E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C).

(See Section 1801(b)(2)(A)-(E), emphasis added.)

Even assuming the FBI and Justice Department could prove that efforts were being made to recruit a U.S. person to become an agent of a foreign power, that would not come close to the probable cause showing required under FISA. If the government wants to establish that an American is a foreign agent, it must demonstrate that the American is knowingly engaged in clandestine activity on behalf of the foreign power that is so egregious it very likely constitutes a serious federal felony — e.g., terrorism, sabotage, or using false identities while spying on behalf of the foreign power.

To date, after dueling memos from Democrats and Republicans on the House Intelligence Committee, plus the Grassley-Graham memo from the Senate Judiciary Committee, we have only one allegation regarding Page that approaches the statutorily required showing that he was acting as an agent of a foreign power: the Steele dossier’s claim that Page met separately with Sechin and Divyekin, and discussed with them, respectively, a corrupt quid pro quo to end sanctions against Russia, and the possibility that the Kremlin would provide the Trump campaign with damaging information (“kompromat”) against Hillary Clinton (along with a warning that Trump should be careful dealing with Russia because the Kremlin had kompromat on him, too).

In light of the legal standard that applies, it is inconceivable that the FISA warrant would have issued in the absence of this uncorroborated hearsay allegation — which is exactly what FBI deputy director Andrew McCabe stated in December 2017 House Intelligence Committee testimony (a Nunes memo assertion (at p.3, para.4) that the Schiff memo does not attempt to rebut), and exactly what is reported in the Grassley-Graham memo (at p.2: “The bulk of the application consists of allegations against Page that were disclosed to the FBI by Mr. Steele and are also outlined in the Steele dossier”). Schiff may be right that there were several layers of information in the warrant application about what Russia was doing regarding the election and Russia’s efforts to recruit foreign agents — including Page. But specifically with respect to Page, who was targeted for surveillance and as to whom the government was legally required to show probable cause that he was a knowing, active agent of a foreign power, without the Sechin/Divyekin allegation, there could have been no basis for the warrant.

One last point of law that is covered in more detail in my column. FISA also requires the FBI and Justice Department to satisfy the court that surveillance — highly intrusive eavesdropping on the phone, email, text, and other communications of the alleged agent of a foreign power — is necessary because the information sought “cannot reasonably be obtained by normal investigative techniques.” (See FISA, Section 1804(a)(6)(C).) Such techniques include interviewing the alleged foreign agent.

The Schiff memo acknowledges that the FBI has interviewed Page numerous times over the years, including as late as March 2016 — six months before the FISA warrant. Yet, the Schiff memo fails to explain that Page was a government cooperator in a 2013 investigation of Russian spies, and that his information was used to prosecute the spies. In fact, this is the very matter in which the Russians were trying to recruit Page. I pointed out this out in responding to the Schiff memo’s precursor, a letter from the Intelligence Committee’s senior Democrat, Representative Jerrold Nadler of New York:

On the question of criminality, I note that many commentators point to Page’s involvement in a prior FBI investigation involving Russia, and darkly observe that he “was on the Bureau’s radar screen for years” before the October 2016 FISA warrant application — as if this supposition were a substitute for FISA’s legal requirement of proving criminal activity. But the 2013 investigation into which Page stumbled was a case of Russian agents trying to recruit him as a source. Far from doing anything criminal, Page appears to have cooperated with the FBI and Justice Department to nail the Russian spies. (See the Justice Department’s complaint in United States v. Buryakov, at pp. 12–13 — Page is “Male-1,” whom the Russian spy Victor Podobnyy refers to as an “idiot,” and whose 2013 interview by the FBI is described in paragraph 34.) Again, we don’t know everything the FBI knows, but based on what we have been told, it appears that in the prior case, Page worked with the United States against Russia; that does not jibe with the allegation in the FISA warrant application that he worked with Russia against the United States.

Consider these two facts. First, there is no public indication that Page has ever been unwilling to speak to federal investigators or has ever lied to them in the many times he has been interviewed — unlike, say, Christopher Steele, who was terminated as an informant for violating his agreement about press contacts and for apparently lying to the FBI about speaking to the media. Second, the FBI and Justice Department quite understandably wanted to know whether Page had met with Sechin and Divyekin but were unable to verify Steele’s hearsay claim that he had.

There is no public indication that Page has ever been unwilling to speak to federal investigators or has ever lied to them in the many times he has been interviewed.

With those things in mind, I will close here with the same questions I asked in the column posted last night:

When Steele brought the FBI his unverified allegations that Page had met with Sechin and Divyekin, why didn’t the FBI call Page in for an interview rather than subject him to FISA surveillance?

Given that it is a requirement of federal FISA law that the FBI and Justice Department demonstrate that surveillance is necessary because alternative investigative techniques have been tried and have failed, or would fail if tried, what did the government agents and lawyers tell the FISA court about why interviewing Page would not yield the information they were seeking?

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