https://www.nytimes.com/2020/03/04/u...veillance.html
Court Bans Agents Who Botched Carter Page Surveillance From Seeking Wiretaps
An opinion and ruling by the Foreign Intelligence Surveillance Court also accepts a series of reforms the F.B.I. said it would make following a damning inspector general report.
By
Charlie Savage
March 4, 2020
WASHINGTON — A secretive federal court on Wednesday effectively barred F.B.I. officials involved in the wiretapping of a former Trump campaign adviser from appearing before it in other cases at least temporarily, the latest fallout from an internal inquiry into the bureau’s surveillance of the aide.
A 19-page opinion and order by James E. Boasberg, the chief judge of the Foreign Intelligence Surveillance Court, also largely accepted changes the F.B.I. has said it will make to its process for seeking national-security wiretaps following a damning inspector general report about errors and omissions in applications to monitor the adviser, Carter Page.
But Judge Boasberg ordered law enforcement officials to specifically swear in future cases that the applications to the court contain “all information that might reasonably call into question the accuracy of the information or the reasonableness of any F.B.I. assessment in the application, or otherwise raise doubts about the requested findings.”
While Judge Boasberg also ordered the F.B.I. to report back about its progress on the changes, the move essentially brought to a close the court’s intervention after the report. His predecessor as chief judge in December had ordered the F.B.I. to explain what it would do to regain the confidence of the judges who review wiretap requests.
The order comes as Attorney General William P. Barr has discussed administratively imposing even greater — but as yet unspecified — restrictions on F.B.I. spying conducted under the Foreign Intelligence Surveillance Act, or FISA, and lawmakers are debating legislation that would add more safeguards as federal law.
By contrast, the authority of the FISA court is limited: The court can grant or deny applications but lacks jurisdiction to micromanage how the F.B.I. and the Justice Department organize themselves to put together FISA requests as part of counterterrorism or counterintelligence investigations.
After the inspector general report was released in early December detailing a dysfunctional effort by investigators to seek court permission to surveil Mr. Page, whom they had suspected of being a link between the Trump campaign and the Russian government, the F.B.I. said it would take corrective steps.
Officials said the bureau would start enhanced training and use checklists to reduce the risk of repeating one of the significant breakdowns in the process: Evidence casting doubt on investigators’ suspicions about Mr. Page failed to reach the court.
The F.B.I. has also since said it will starting requiring field office agents, rather than headquarters supervisors, to sign factual affidavits describing their cases to the court. That was a key suggestion of David S. Kris, a FISA expert whom Judge Boasberg had appointed to critique the government’s changes. Mr. Kris told the judge that the F.B.I.’s initial changes did not go far enough.
Lawmakers have been debating more sweeping changes, such as requiring judges to appoint an outsider to critique the government’s arguments more frequently. The proposals ranged from requiring the critiques only in cases involving First Amendment activity, like political campaigns and religious worship, to a broader call to use them in all cases involving Americans.
Some civil liberties advocates want to go even further by permitting defense lawyers to read FISA applications when their clients are prosecuted on the basis of evidence from a national-security wiretap to ensure that the applications were candid and complete. Defense lawyers are permitted to do that in ordinary criminal cases, but not national security investigations.
The inspector general, Michael E. Horowitz, found that four applications to wiretap Mr. Page, starting in October 2016 and extending through the summer of 2017, gave the court an incomplete and inaccurate picture of the evidence, including facts that undercut the F.B.I.’s belief that he might be a Russian agent.
Before the second renewal request, the F.B.I. talked to a source for a notorious set of claims about Mr. Trump and Russia, the so-called Steele dossier, that had formed part of the basis of the Page applications. The source contradicted certain claims the dossier had attributed to him, but the Justice Department did not tell the court.
The Justice Department has subsequently acknowledged to the FISA court that the full spectrum of evidence about Mr. Page available by the final two renewal applications in 2017 fell short of the legal standard to justify his continued surveillance.
While Mr. Horowitz did not find evidence to confirm Republican conspiracy theories that the Russia investigation and surveillance of Mr. Page were a high-level plot to sabotage Mr. Trump for political reasons, he rejected as unsatisfactory the excuse that the officials working on the applications were busy and referred all of them for internal investigation.
Judge Boasberg’s new order also directed that no Justice Department or F.B.I. officials “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.”
That ban would thus appear to cover the case agent whom the inspector general singled out as “primarily responsible for some of the most significant errors and omissions” in the Page wiretap applications, and who was among those referred for disciplinary review.
The report did not name him, but The New York Times has identified him as Stephen M. Somma, a counterintelligence investigator in the F.B.I.’s New York field office. The disciplinary review process takes some time, and the internal scrutiny of Mr. Somma and his colleagues is ongoing.
Meanwhile, lawmakers pressing for changes to the surveillance powers regrouped on Wednesday after Mr. Trump pressed Republicans at the White House a night earlier to draft a set of changes that could pass Congress and he could sign into law.
Aides to Speaker Nancy Pelosi and the top House Republican, Representative Kevin McCarthy of California, met to sort out where they may be able to agree on new privacy protections after an earlier legislative effort broke down amid disagreements about how far to go.
“McCarthy said that he thought he and Nancy Pelosi might come up with a package,” Senator Lindsey Graham, Republican of South Carolina and the chairman of the Senate Judiciary Committee, told reporters. “Well, if that happens, that’s a big breakthrough.”
Congress faces a deadline of March 15, when three F.B.I. national-security surveillance and investigative tools enacted after the Sept. 11 attacks are set to expire. While none of those tools were involved in the problematic Page wiretap applications, they have been caught up in the debate because any legislation to extend them is seen as a vehicle to for broader FISA changes.
Nicholas Fandos contributed reporting.
Charlie Savage is a Washington-based national security and legal policy correspondent. A recipient of the Pulitzer Prize, he previously worked at The Boston Globe and The Miami Herald. His most recent book is “Power Wars: The Relentless Rise of Presidential Authority and Secrecy.” @charlie_savage • Facebook
A version of this article appears in print on March 5, 2020, Section A, Page 18 of the New York edition with the headline: Surveillance Court Bars F.B.I. Agents From Page Case.
