Law & the Courts

Reading the FISA Redactions

Carter Page addresses the audience during a presentation in Moscow, Russia, December 12, 2016. (Sergei Karpukhin/Reuters)
Some of them could be consequential, but most surely are not.

Maybe this week . . . maybe next week. We’re led to believe President Trump is on the verge of revealing more of the currently redacted information from the Carter Page FISA-warrant papers.

This would be a welcome development. When it comes to the supposed factual basis on which the FBI and Justice Department sought a national-security eavesdropping warrant — alleging that Page was an agent of the Kremlin and that the Trump campaign was complicit in Russia’s hacking conspiracy — the more transparency the better.

Page has never been charged with any crime, much less with espionage. That is a salient fact because to get a FISA warrant on an American citizen, the FBI is required to show that the citizen’s activities on behalf of a foreign power violate federal criminal law. The FBI and Justice Department went to the FISA court four times over nine months, from October 2016 through June 2017, claiming to have grounds that Page was involved in heinous clandestine activity. Why isn’t he in handcuffs?

I believe it is because they never had a case. All they appear to have had were the 2013 attempt by Russian spies to recruit Page as an asset, and the Steele dossier. If I’m right about that, this would be problematic for the bureau, for two reasons.

First, Page seems to have cooperated in the FBI and DOJ’s prosecution of the Russian operatives, and — both back then and in the ensuing years — to have made himself available pretty much whenever the FBI wanted to interview him. Page has said lots of stupid things about the supposed virtues of appeasing Putin’s anti-American regime, but he is also an Annapolis grad and former U.S. naval intelligence officer. It is not a crime to be targeted for recruitment (by a spy who concluded Page was “an idiot”), to have invested in the Russian energy sector, or to have loopy political views.

Second, the Steele dossier is a compendium of foreign-supplied, rank-hearsay opposition research sponsored by the Clinton campaign. It was never corroborated by the FBI (even though there are guidelines forbidding the bureau from presenting unverified information to the FISA court), and several of its key allegations have been convincingly refuted. It is, furthermore, the subject of libel lawsuits, in defense against which the author — former British spy (and rabid anti-Trump partisan) Christopher Steele — has shrunk from claiming his allegations are true, describing them merely as “raw intelligence” that was “unverified” and needed to be investigated. (Now he tells us.)

The Smoking Gun Must Be in the Redactions . . . Right?
Nevertheless, defenders of the FBI’s investigation push back, claiming there is more to the investigation of Page, maybe much more, than we know about. This doesn’t just fly in the face of the lack of any “collusion” prosecutions. Congressional investigators tell us that the Steele-dossier allegations were central to the FISA-warrant applications. The FBI’s former deputy director, Andrew McCabe, acknowledged that without the dossier the FBI could not have claimed probable cause for the surveillance.

So, what are the defenders relying on? The redactions. Far from complaining about the lack of transparency, they imagine that under those thousands of blacked-out lines lies the motherlode. The FISA documents amount to 412 pages, and those black-outs make up the lion’s share. Therefore, the defenders reason, the FBI had more than just a failed recruitment episode and the Steele dossier against Page — probably a whole lot more.

I doubt it.

I will have you know, dear readers, that I have spent long hours scrutinizing the FISA documents so you don’t have to. The vast majority of what is blacked out has nothing to do with the probable-cause showing against Carter Page. In fact, while the probable-cause showing is the most significant part of a FISA application package, it is a comparatively small part.

I use the term “package” because a government submission to the FISA court is not just an application signed by the investigative agent. It also includes a lengthy certification by a top-ranking national-security official (here, the FBI’s director or deputy director), a short approval declaration by the Justice Department (here, by the deputy attorney general), and the proposed warrant itself to be signed by the judge. In congressional testimony, former FBI director James Comey claimed that FISA submissions are often thicker than his wrists. Besides being a bit of an exaggeration, this description failed to explain that most of the extensive documentation is unrelated to probable cause, thus conveying the misimpression that FISA applications are always supported by mountainous evidence.

To compare, the first Page submission was just 83 pages — Jim Comey is a big guy; that wouldn’t make it too far up his wrist. Let’s analyze those 83 pages in order to consider how much the redacted information may bear on probable cause.

Extensive Redactions Unrelated to Page
Instantly, we find we drop from 83 down to 54 pages. Turns out the package’s last 29 pages are not part of the warrant application at all. They consist of the afore-described FBI certification, the DOJ approval, and a proposed warrant for the judge to sign — nothing to do with establishing probable cause that Page is a Russian asset conspiring against the election.

These 29 pages are very heavily redacted. You’re probably wondering why, because you’ve been led to believe that redactions must involve damning evidence against Page. Well, no.

See, FISA documents are not classified solely because of alleged clandestine doings by foreign operatives. They also set forth the secret authorities the government is granted in order to carry out the surveillance, the manner in which the surveillance is to be conducted, the communications facilities the FBI is permitted to monitor, the methods by which the bureau is permitted to gain access to those facilities, the minimization instructions that must be followed to avoid unauthorized monitoring, and so on.

This information must remain concealed. The FBI and the Justice Department wanted these redactions not because they bear on Carter Page’s activities, but because they relate to intelligence methods. Exposing this information would compromise virtually all of the government’s FISA investigations. Rest assured that, even if President Trump orders the disclosure of some additional details about Page, all this other information about the authorities, procedures, and techniques germane to national-security surveillance will remain blacked out.

FISA-Warrant Application Traces FISA Statute
So let’s finally turn to the 54-page application. Yes, a great deal of it is blacked out. But that hardly means we are clueless about what most of the redacted information conveys.

Here is the code that you need to crack. The application has numbered paragraphs (with a lot of subparagraphs within them). For the most part, these numbered paragraphs correspond to the sections of the FISA statute that governs FISA applications, Section 1804 of Title 50, U.S. Code. Conforming the paragraphs to the statutory requirements makes it easier for the court to see that all necessary information is included. The requirements are set forth in nine subsections of §1804 — numbered (a)(1) through (a)(9). If you compare the Page warrant application with the statute, you see that paragraph 1 conforms to (a)(1), paragraph 2 to (a)(2), and so on.

Well guess what? Of these nine statutory requirements, only one involves the all-important probable-cause showing: (a)(3). In it, Congress directs the FBI to provide the court with “a statement of the facts and circumstances relied upon” to justify the bureau’s beliefs that (a) the proposed target is an agent of a foreign power and (b) the facilities or places the bureau wants to monitor are being used for the target’s clandestine activities.

None of the other eight sections bear on probable cause. They direct the government to supply: the identity of the applying officer and the target, a statement of the “minimization procedures” the FBI will use to avoid unauthorized monitoring, a description of the nature of the information sought (i.e., foreign intelligence), certifications by high-ranking national-security officials that the government is seeking foreign intelligence, an explanation of how the eavesdropping will be carried out, a recitation of any prior applications related to the target, and a statement of the proposed duration of the surveillance.

That is a lot of non-probable-cause information, and it is heavily redacted. In the first Page application it takes up about 21 of the 54 pages.

That means only 33 of the submission’s 83 pages deal with probable cause, beginning on page 2 and continuing into page 36. Bear in mind, by the way, that these pages often contain fewer than 20 double-spaced lines, with many lines consisting of a sub-heading or just a word or two of text. Contrary to what’s been suggested, we are not talking War and Peace here.

The Probable-Cause Showing Seems Thin
Now, what about those 33 pages? Well, a goodly chunk of them at the beginning does not address Carter Page at all. It’s all about Russia: The FBI explains that the regime in Moscow is a foreign power, that it has been messing with our elections since the Cold War, and that it meddled in them in 2016 by cyberespionage (with the help of WikiLeaks). We are eight pages into the factual recitation before we get to Page.

Plainly, the Page section rests on the two grounds that we have been told about: the Russian attempt to recruit him as a source in 2013, and the Steele dossier. The latter makes up the bulk of the probable-cause showing, pages 15–27. This includes the allegation that the FBI patently hung its hat on: Steele’s claim that, while in Russia in July 2016, Page met with two Putin-regime heavyweights, Igor Sechin and Igor Diveykin, discussing a corrupt quid pro quo arrangement involving sanctions relief for Moscow, as well as the possible transmission to the Trump campaign of “kompromat” (compromising information) about Mrs. Clinton that the Kremlin was purportedly holding. (Page denies knowing, let alone meeting, these men; there is no publicly known corroboration of Steele’s claim.)

Even parts of what the application labels the Page section have nothing to do with Page. There is, for example, the long, infamous footnote on Steele, a winding circumlocution in which the FBI and Justice Department strain to avoid telling the court that his work is sponsored by Clinton’s campaign and that he is passionately anti-Trump. There is also a discursion, based on media reports, about how Trump may be soft on Putin, how he may meekly accept the annexation of Crimea, and how the Trump campaign’s supposed intervention in Republican-platform-writing at the GOP convention weakened a plank on arming Ukraine (a claim that has been debunked by the Washington Examiner’s Byron York). Note that, even though the FBI had nine months to do its own independent investigation about these matters, the bureau and Justice Department instead regurgitated the same media reports in every FISA renewal application — and the FISA court apparently never questioned this peculiar “proof.”

The warrant application also contains a lengthy (five-page) section — repeated in all the renewal applications — that is largely based on Michael Isikoff’s September 23, 2016, Yahoo News article about Page’s purported meetings with Sechin and Diveykin. The upshot is that Page vehemently denied that these meetings took place, and the Trump campaign distanced itself from Page. It is difficult to understand how this section advances the case that Page is an agent of Russia; perhaps the government’s theory is that Page and the campaign were making false exculpatory statements that show consciousness of guilt. From what we can read, it is certainly not obvious that they were lying . . . but, if we’re going to talk about false statements, we must note that the FBI told the court that Steele was not the source for Isikoff’s news article, which turns out not to be true.

This section involving Page’s insistence that he is not a Russian agent is followed by six pages that are completely redacted. Is there smoking-gun probable-cause information hidden under these blackouts? I’d be surprised if there were, but we simply don’t know. If it can be done without compromising vital intelligence sources, it would be useful if the president ordered these pages to be disclosed.

Why Are Page’s Purported Crimes Redacted?
After that, though, this probable-cause section does not even purport to add to the probable-cause showing.

The final seven of the factual recitation’s 33 pages consist of a “conclusion” that begins by merely asserting what the FBI argues the foregoing pages have established. It then moves on to what, apparently, is a description of the criminal statutes Page has allegedly violated. We have to say “apparently” because these pages are all blacked out.

Why redact Page’s alleged crimes? Is it because Page is still under the investigation and the FBI doesn’t want to tip him off about its suspicions? Is it because the “crime” allegations come from the Steele dossier and the FBI would rather not acknowledge that? Is it because the FBI, confident that no one would ever get to see this FISA-warrant application, made extravagant claims? Again, we don’t know. But what would be the harm to national security in disclosing to the public what crimes the FBI and Justice Department alleged that Page had committed? We already know they accused him of being a Russian agent complicit in an espionage conspiracy against the election. How much worse can it be?

Anyway, that’s it as far as probable cause goes in the first application. As one would expect, the three warrant-renewal applications grow progressively (but not significantly) longer than the initial 83-page package (98, 110, and 121 pages, respectively). They incorporate and attempt to build on the first surveillance. There are more redactions in the probable-cause section, at least some of which appear to relate to Page’s then-ongoing activities. Again, since Page has never been charged with a “collusion” offense (no one has), and since he has been very public in both denying sinister dealings with Russia and demanding an accounting from the FBI, it would be surprising if the redactions were earth-shattering.

The point, though, is that while some of the redactions could be consequential, most surely are not. Their importance has been inflated. The combined 412 pages of FISA packages are duplicative, with what largely appear to be the same redactions threading through all four application packages. For the most part, if we compare the redactions to the requirements of the FISA statute, we can figure out the types of information the government has concealed and why it has done so.

The vast majority of what’s been redacted has nothing to do with establishing probable cause that Carter Page was a Russian asset whose clandestine activities involved criminal violations. The suggestion that, hidden in the redactions, there is a trove of evidence, derived from neither the Steele dossier nor the Russian attempt to recruit Page about five years ago, seems highly unlikely.

 

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