Late to the party, but here are my thoughts on the Inspector General’s report as it relates to the FISA process. 1/18
First, the report confirms that neither the investigation generally nor the FISA applications in particular were motivated by political bias. No big surprise there; despite what Trump would have us believe, the FBI isn’t actually a bunch of bleeding-heart liberals. 2/18
Instead, the report shows that official DOJ and FBI policies make it far too easy for FBI officials to investigate First Amendment-protected activity, in a way that could be highly problematic if there *were* political bias. 3/18
Several of the actions that most troubled the IG—such as the FBI opening a politically sensitive investigation without notifying senior DOJ officials—were completely consistent with existing policy. 4/18
The IG also found that FBI personnel omitted and distorted key facts in order to strengthen their FISA applications. These actions, of course, violated official policy. But again, there was no evidence of political bias. That’s the good news, but it’s the bad news too. 5/18
If the Page FISA applications were handled just like any other (or perhaps even more cautiously, as some parts of the IG report suggest), that means this kind of sloppiness and application-padding is par for the course in the FISA process. 6/18
That’s something many of us have been concerned about for some time. For a variety of reasons, the FISA application process seems vulnerable to exactly the kind of corner-cutting displayed in the IG report. 7/18
Most obviously, the process is one-sided; the FISA Court hears only from the government, not from the surveillance target. That’s true for ordinary criminal warrants, as well. But there are key differences that make it more problematic in the FISA context. 8/18
In criminal investigations, the ultimate goal is almost always a prosecution. As the prosecutor knows when seeking the warrant, the defendant will generally have the opportunity during trial to challenge the warrant’s validity. 9/18
By contrast, the vast majority of foreign intelligence investigations do not culminate in a trial, which means the government’s justification for seeking a warrant will never be subjected to any adversarial testing. 10/18
Also, the FISA Court and the attorneys who practice before it are part of an elite club composed of a relatively small number of repeat players. According to DOJ, FISA applications are iterative processes; Court staff and DOJ lawyers are in frequent and close contact. 11/18
In that environment, it’s predictable that a trust relationship between FISA Court personnel and DOJ lawyers will end up doing a lot of the work that *should* be done by meticulous preparation and review of the facts in the application. 12/18
These are systemic problems that have nothing to do with Trump’s paranoia about the “deep state.” The problem here isn’t that the FBI’s errors were based on political animus. The problem is that they weren’t… 13/18
…which means other targets of FISA surveillance, ordinary people whose surveillance will never be leaked or generate IG reports or prompt declarations of outrage from members of Congress, are likely being surveilled based on similarly flawed applications. 14/18
It also means that if FBI agents *are* sometimes motivated by bias—whether political, racial, or religious—existing procedures might not be sufficient to weed it out. 15/18
Fortunately, the Inspector General recognizes that the problems he found are systemic. His report recommends strengthening internal oversight for investigations that touch on First Amendment activities, plus measures to improve the accuracy of FISA applications. 16/18
The IG also announced that he will be conducting an audit to examine the FBI’s performance more generally when it comes to FISA applications that target U.S. persons. This will shed much-needed light on a surveillance authority that has long flown under the radar. 17/18
In short, Carter Page was almost certainly treated the same as (if not better than) any other American targeted under FISA. That’s what should worry us, and that’s where Congress should turn its focus now. 18/18
