Secretive Surveillance Court Rebukes FBI Over Handling of Surveillance of Trump Aide

Secretive Surveillance Court Rebukes FBI Over Handling of Surveillance of Trump Aide

Presiding judge describes recent Inspector General report as ‘troubling’

A critical watchdog report found serious lapses in the FBI’s handling of warrant applications on former Trump campaign adviser Carter Page. Photo: joshua roberts/Reuters

By

Byron Tau

Updated Dec. 17, 2019 5:04 pm ET

WASHINGTON—A secretive surveillance court issued a rare public order on Tuesday rebuking the FBI for its handling of warrant applications to wiretap Carter Page, a onetime Trump campaign foreign-policy adviser whose monitoring by the government has become the subject of significant public controversy.
Judge Rosemary Collyer, the presiding judge of the Foreign Intelligence Surveillance Court, wrote in the filing that a recent Justice Department watchdog report was “troubling” and described the behavior of the FBI as “antithetical to the heightened duty of candor” owed to the court by government agents.
“The frequency with which representations made by FBI personnel turned out to be unsupported or contradicted by information in their possession, and with which they withheld information detrimental to their case, calls into question whether information contained in other FBI applications is reliable. The FISC expects the government to provide complete and accurate information in every filing with the Court,” Judge Collyer wrote.
The order could drastically reshape relations between the court and the Justice Department and could have ramifications for how some of the nation’s most sensitive intelligence programs are run. The court has long approved the overwhelming number of the government’s warrant applications and signed off on most of its surveillance activities, but in recent years it has begun to scrutinize them more closely. The rift over the matter of Mr. Page could heighten the court’s scrutiny of government surveillance.
Because of the nature of the court’s work in approving secret surveillance of people suspected of spying and terrorism, it operates in near total secrecy and rarely releases its filings or orders to the public.
The order follows the release earlier in December of a watchdog report that found serious lapses in the FBI’s handling of the warrant against Mr. Page. In the report, the Justice Department’s inspector general found that the FBI had withheld exculpatory material about Mr. Page from the court and made misleading statements about his relationship with another government agency.
Judge Collyer ordered the Justice Department to explain by Jan. 10 what steps it was taking to prevent such lapses in the future. The judge’s order also indicated it planned to release more secret material about the case in the coming weeks on its public docket, offering the possibility of additional insight into the government’s most secret surveillance programs.
The FBI has already said it planned to make several changes in the wake of the inspector general report, including overhauling its surveillance warrant process and its confidential human informant program. It also said it would take disciplinary action if warranted, as the inspector general referred certain FBI employees for possible disciplinary measures.
The Foreign Intelligence Surveillance Court was set up in the 1970s to oversee the government’s national security apparatus after several landmark congressional investigations revealed the widespread use of wiretaps without court authorization by the FBI on national security grounds. Its members are sitting federal judges across the country who are designated by Supreme Court Chief Justice John Roberts to serve on the FISC.
The court has long been controversial. Because it operates in secrecy and deals almost entirely with classified national security matters, the public has little knowledge of its activities.
Civil libertarians have long accused the court of being a rubber stamp for the government, saying it doesn’t exercise meaningful oversight of U.S. spy agencies. Its defenders have argued that it serves an important function in approving national security surveillance.
In recent years, Congress has mandated more transparency for the court, requiring it to publish the number of orders that it approves, modifies or denies.
Since the information became available, denials have trended upward slightly. In 2015 and 2016, the court denied in full only 0.5% of applications it received, according to data from the court. In 2017, it jumped to about 1.5% of applications. Last year, the court denied in full about 1.8% of the roughly 1,300 applications it received.