FPI / March 6, 2020
Officials from the Department of Justice and FBI who are under review for their role in obtaining wiretaps to spy on Trump campaign associate Carter Page have been banned from having any involvement in the pursuit of electronic monitoring through the Foreign Intelligence Surveillance Court, a judge ruled.
In a 19-page opinion issued on March 4, Judge James Boasberg ordered that “no DOJ or FBI personnel under disciplinary or criminal review relating to their work on FISA applications shall participate in drafting, verifying, reviewing, or submitting such applications to the Court.”
“Any finding of misconduct relating to the handling of FISA applications shall be promptly reported to the Court,” Boasberg added.
DOJ Inspector General Michael Horowitz released a report in December which found the DOJ and the FBI had committed at least 17 “significant errors and omissions” related to the FISA surveillance of Page.
Judge Boasberg said that the “frequency and seriousness" of the errors found by Horowitz "called into question the reliability of the information proffered in other FBI applications." The judge said the government has been “acknowledging its deficiencies” and “undertaking multiple remedial measures” in response to Horowitz’s report and to court orders but also noted that “the errors the OIG pointed out cannot be solved through procedures alone” and that everyone at the DOJ and FBI “must fully understand and embrace the heightened duties of probity and transparency” in the secret court proceedings.
The Washington Examiner noted in a March 4 report that Boasberg touched on three main areas of the FBI’s internal FISA reforms: improvements to procedures for preparing FISA applications, improvements to training and other efforts to institutionalize the importance of accuracy and completeness, and oversight more broadly.
“While more rigorous procedures for preparing FISA applications should prove helpful, the Court is also mindful that changes in culture will require more than checklists,” Boasberg said.
All FBI employees mentioned in Horowitz's FISA report were referred to the Office of Professional Responsibility, which is the bureau's disciplinary arm, FBI Director Christopher Wray told lawmakers last month.
Horowitz recommended that the FBI conduct performance reviews of all employees in the chain of command who had responsibility for the FISA applications. Wray pledged to take appropriate disciplinary action and vowed individual accountability.
“Yet, the integrity of the FISA process must be protected while those disciplinary reviews are ongoing,” Boasberg said, ruling that any FBI or DOJ officials under any review related to the Page saga should not participate in the FISA process at this time. The judge also ordered new oaths to be sworn by DOJ and FBI officials working on FISA applications going forward.
FBI applicants and DOJ attorneys will now be required to affirm, "To the best of my knowledge, this application fairly reflects all information that might reasonably call into question the accuracy of the information or the reasonableness of any FBI assessment in the application, or otherwise raise doubts about the requested findings.”
The Examiner reported that Boasberg also ordered the FBI to provide the court with a copy of its updated confidential human source checklist, a description of the specific responsibilities that FBI Office of the General Counsel lawyers have during the FISA process, and a report on any other proposed FISA reforms by later this month.
The judge noted two controversies were advancing on a “separate track” and were not addressed in much detail in the Wednesday opinion. Those controversies comprise scrutiny of all the filings touched by FBI lawyer Kevin Clinsemith and a review of the government’s handling of the intelligence gleaned through the Page FISA monitoring.
Clinesmith, who altered a document in FISA filings to say Page was “not a source” for the CIA when he was, is the only person publicly known to be under criminal investigation by U.S. Attorney John Durham, who is conducting a review of the Russia investigation.
The Justice Department said at least the final two of four Page FISA warrants were “not valid” and that the FBI sought to “sequester” the information obtained from that surveillance.
Wray testified that the behavior of some in the DOJ and the FBI was “utterly unacceptable” and agreed that there had been at least some illegal surveillance. He said he was working to “claw back” the FISA information.
Free Press International