A high-profile inspector general report has served as fodder for arguments about President Trump. But its findings about surveillance are important beyond partisan politics.A new report highlighted longstanding issues with how the F.B.I. conducts national security surveillance. Credit... Jason Andrew for The New York Times
WASHINGTON — When a long-awaited inspector general report about the F.B.I.’s Russia investigation became public this week, partisans across the political spectrum mined it to argue about whether President Trump falsely smeared the F.B.I. or was its victim. But the report was also important for reasons that had nothing to do with Mr. Trump.
At more than 400 pages, the study amounted to the most searching look ever at the government’s secretive system for carrying out national-security surveillance on American soil. And what the report showed was not pretty.
The Justice Department’s independent inspector general, Michael E. Horowitz, and his team uncovered a staggeringly dysfunctional and error-ridden process in how the F.B.I. went about obtaining and renewing court permission under the Foreign Intelligence Surveillance Act, or FISA, to wiretap Carter Page, a former Trump campaign adviser.
“The litany of problems with the Carter Page surveillance applications demonstrates how the secrecy shrouding the government’s one-sided FISA approval process breeds abuse,” said Hina Shamsi, the director of the American Civil Liberties Union’s National Security Project. “The concerns the inspector general identifies apply to intrusive investigations of others, including especially Muslims, and far better safeguards against abuse are necessary.”
Congress enacted FISA in 1978 to regulate domestic surveillance for national-security investigations — monitoring suspected spies and terrorists, as opposed to ordinary criminals. Investigators must persuade a judge on a special court that a target is probably an agent of a foreign power. In 2018, there were 1,833 targets of such orders, including 232 Americans.
Most of those targets never learn that their privacy has been invaded, but some are sent to prison on the basis of evidence derived from the surveillance. And unlike in ordinary criminal wiretap cases, defendants are not permitted to see what investigators told the court about them to obtain permission to eavesdrop on their calls and emails.
At a Senate Judiciary Committee hearing on Mr. Horowitz’s report on Wednesday, both Republicans and Democrats suggested that legislation tightening restrictions on FISA surveillance may be coming, and the A.C.L.U. submitted ideas to the committee.
Civil libertarians for years have called the surveillance court a rubber stamp because it only rarely rejects wiretap applications. Out of 1,080 requests by the government in 2018, for example, government records showed that the court fully denied only one.
Defenders of the system have argued that the low rejection rate stems in part from how well the Justice Department self-polices and avoids presenting the court with requests that fall short of the legal standard. They have also stressed that officials obey a heightened duty to be candid and provide any mitigating evidence that might undercut their request.
But the inspector general found major errors, material omissions and unsupported statements about Mr. Page in the materials that went to the court. F.B.I. agents cherry-picked the evidence, telling the Justice Department information that made Mr. Page look suspicious and omitting material that cut the other way, and the department passed that misleading portrait onto the court.
To give just three examples:
First, when agents initially sought permission for the wiretap, F.B.I. officials scoured information from confidential informants and selectively presented portions that supported their suspicions that Mr. Page might be a conduit between Russia and the Trump campaign’s onetime chairman, Paul Manafort.
But officials did not disclose information that undercut that allegation — such as the fact that Mr. Page had told an informant in August 2016 that he “never met” or “said one word” to Mr. Manafort, who had never returned Mr. Page’s emails. Even if the investigators did not necessarily believe Mr. Page, the court should have been told what he had said.
Second, as the initial court order was nearing its expiration and law-enforcement officials prepared to ask the surveillance court to renew it, the F.B.I. had uncovered information that cast doubt on some of its original assertions. But law enforcement officials never reported that new information to the court.
Specifically, the application included allegations about Mr. Page contained in a dossier compiled by Christopher Steele, a former British intelligence agent whose research was funded by Democrats. In January 2017, the F.B.I. interviewed Mr. Steele’s own primary source, and he contradicted what Mr. Steele had written in the dossier.
The source for Mr. Steele may, of course, have been lying. But either way, officials should have flagged the disconnect for the court. Instead, the F.B.I. reported that its agents had met with the source to “further corroborate” the dossier and found him to be “truthful and cooperative,” leaving a misleading impression in renewal applications.
Finally, the report stressed Mr. Page’s long history of meeting with Russian intelligence officials. But he had also said that he had a relationship with the C.I.A., and it turns out that he had for years told the agency about those meetings — including one that was cited in the wiretap application as a reason to be suspicious of him.
That relationship could have mitigated some suspicions about his history. But the F.B.I. never got to the bottom of it, and the court filings said nothing about Mr. Page’s dealings with the C.I.A.
The inspector general’s report contains many more examples of errors and omissions. Mr. Horowitz largely blamed lower-level F.B.I. agents charged with preparing the evidence, but he also faulted high-level supervisors for permitting a culture in which the inaccuracies took place.
And while Mr. Horowitz obtained no documents or testimony showing that the inaccuracies stemmed from any political bias — as opposed to incompetence and negligence — he also rejected as “unsatisfactory” the explanation that the agents were busy on the larger Russian investigation and that the Page wiretap order was only a small part of their responsibilities.
Still, it is undeniable that the agents and supervisors compiling materials for the Page wiretap application were under far more pressure than in routine counterintelligence investigations. Both in terms of the stakes and the tempo, the early Russia investigation may have had more in common with a counterterrorism investigation.
But that factor also raises the question of what goes into applications for wiretaps in lower-profile cases. Indeed, everyone involved in the Page wiretap knew that what they were working on was likely to come under close scrutiny, yet they still repeatedly failed to follow policies.
Mr. Horowitz also said senior-level supervisors bore responsibility for permitting systemic failures to fester, and his office has begun a broader audit of unrelated FISA applications.
His exposé left some former officials who generally defend government surveillance practices aghast.
“These errors are bad,” said David Kris, an expert in FISA who oversaw the Justice Department’s National Security Division in the Obama administration. “If the broader audit of FISA applications reveals a systematic pattern of errors of this sort that plagued this one, then I would expect very serious consequences and reforms.”
On rare occasions, the public has caught glimpses of problems with the information that goes into FISA applications.
In 2000, the Justice Department confessed to errors in F.B.I. affidavits submitted in 75 surveillance and search applications related to major terrorist attacks, a FISA court opinion disclosed.
The court met “to consider the troubling number of inaccurate F.B.I. affidavits” and barred an unnamed F.B.I. agent from making affidavits before the court. In response, the F.B.I. came up with far more rigorous internal procedures, pledging to ensure the accuracy of FISA affidavits by more carefully reviewing them.
But when Mr. Horowitz’s investigators looked at the underlying files for the Page applications, they found errors and omissions that showed that the F.B.I. had not scrupulously followed those procedures.
The government has fought hard to keep outsiders from seeing what goes into its FISA applications. In 2014, a federal judge in Illinois ordered the government to show a defense lawyer classified materials about the national security surveillance of his client, which would have been the first time a defense lawyer had been given such materials since Congress enacted FISA in 1978.
But the Obama administration appealed, and an appeals court overturned the order, agreeing that letting the defense counsel see the application would create an intolerable risk of disclosing sensitive government secrets.
That stands in contrast to how wiretapping works in ordinary criminal law. Targets are usually told when the surveillance ends. If they are prosecuted based on evidence gathered from the wiretap, they get to see what was in the application so their defense lawyers can argue that the government made a mistake and the evidence should be suppressed.
The prospect of that adversarial second-guessing gives criminal investigators a reason to be scrupulous about what they put into their requests for wiretaps. In the absence of that disciplining factor, the government has developed heightened internal oversight about what goes into FISA applications.
But that system demonstrably failed in the Page wiretap.
The report should call into question the legitimacy of the FISA system “whether you like Trump, hate Trump, don’t care about Trump,” Senator Lindsey Graham of South Carolina, the Republican chairman of the Judiciary Committee, said at the hearing on Wednesday.
“I’d hate to lose the ability of the FISA court to operate at a time probably when we need it the most,” Mr. Graham told Mr. Horowitz. “But after your report, I have serious concerns about whether the FISA court can continue unless there’s fundamental reform.”