FBI Surveillance of Trump Aide Reflects Flaws in Secretive FISA System

AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman, with Nermeen Shaikh. You can put this next story in the category of “While you may have been distracted by the historic impeachment that took place yesterday, this also happened in Washington.”

NERMEEN SHAIKH: Justice Department Inspector General Michael Horowitz said Wednesday that the FBI should have considered halting its surveillance of a Trump campaign aide after learning accusations against him may not be credible. Horowitz made the comments while testifying to the Senate Homeland Security Committee, accusing the FBI of using false information to obtain approval to wiretap Trump campaign adviser Carter Page, and raising wider concerns about the agency’s use of surveillance. His testimony came a day after the highly secretive Foreign Intelligence Surveillance Court, known as the FISA Court, issued a public order accusing the FBI of misleading the court to gain approval to wiretap Page, and ordering the FBI to propose changes in how its investigators seek permission for domestic surveillance of U.S. citizens by January. The court first approved the FBI’s wiretapping Page in October 2016 and extended its order three times in 2017.

AMY GOODMAN: This comes a week after the IG, the inspector general, Michael Horowitz, first issued a report finding a series of inaccuracies and omissions in the FBI’s surveillance application process. The American Civil Liberties Union responded to the report, tweeting, “The concerns the Inspector General identifies apply to intrusive investigations of others, including especially Muslims, and far better safeguards against abuse are necessary,” unquote.

Well, for more, we’re joined by Ashley Gorski, staff attorney with the National Security Project at the ACLU.

Ashley, thanks so much for joining us again. So, while you were watching something else yesterday, to the world, this other testimony happened. And while there are many who might be horrified at Trump’s actions overall, this issue that he also has raised, that the ACLU joins in concern with, talk about the level of surveillance that the FBI engage with. Talk about what happened with Carter Page and why you’re so concerned.

ASHLEY GORSKI: Sure. So, the surveillance at issue takes place under the Foreign Intelligence Surveillance Act, and it’s an incredibly intrusive form of surveillance with inadequate safeguards. The Horowitz report identified several significant errors and omissions in the FBI’s surveillance applications to the secret court that presides over the surveillance, the FISA Court. And this is why the ACLU has called for fundamental FISA reform. We’ve been calling for this reform for decades. But the Horowitz report, in many respects, illustrates the dangers of this secretive, one-sided process, whereby the government applies to the court for surveillance and there’s no sufficient adversarial check on the government’s surveillance activities.

AMY GOODMAN: In lay terms, explain what happened to Carter Page and who he is.

ASHLEY GORSKI: Sure. So, Carter Page was an adviser to the Trump campaign. And he had been on and off the government’s radar for several years preceding his involvement with the Trump campaign. The FBI eventually sought an application with the Foreign Intelligence Surveillance Court to surveil his communications on the basis that the FBI believed he was a foreign agent for Russia, he was an agent of a foreign power. And as a result, it sought broad latitude to wiretap his communications. And they did so shortly after he left the Trump campaign.

AMY GOODMAN: And what do you mean, “foreign agent”?

ASHLEY GORSKI: Essentially, acting on behalf of Russia, how he was —

AMY GOODMAN: That he was being paid by them.

ASHLEY GORSKI: It wouldn’t necessarily have to involve payment, but, yes, acting on behalf of Russia in the United States.

NERMEEN SHAIKH: Well, the bureau, the FBI, has said that the conduct detailed in the report is, quote, “unacceptable and unrepresentative of the FBI as an institution.” Your response? Is that your sense?

ASHLEY GORSKI: The conduct is certainly unacceptable, but it remains to be seen whether this conduct is actually unrepresentative. And this point bears emphasis. The Carter Page investigation involved an incredibly sensitive surveillance target, an individual who was associated with a presidential campaign. When the stakes were highest, the FBI failed. And it failed repeatedly to ensure that its surveillance application was accurate. And it begs the question: What errors and omissions are lurking in the FBI’s surveillance applications in more ordinary cases?

The ACLU has called for reform of this process, including requiring disclosure to individuals who are prosecuted with the aid of FISA surveillance, requiring disclosure of the applications, so that defendants who are prosecuted using this surveillance have the opportunity to challenge the FBI’s errors and omissions. Without this kind of disclosure, it’s impossible for any particular individual to know whether there are misstatements in the surveillance applications.

AMY GOODMAN: James Comey was interviewed by Chris Wallace on Fox, and he said — now, he was head of the FBI — “I was wrong. I was overconfident in the procedures that the FBI and Justice had built over 20 years. I thought they were robust enough.” He’s talking about the IG now, the inspector general. “He was right: There was real sloppiness.” So, explain what he means. I mean, he was in charge. They were applying to the FISA Court. And then make it broader than Carter Page. Talk about who usually gets brought before the FISA Court, whether they know it or not.

ASHLEY GORSKI: Of course. I mean, there is tremendous secrecy shrouding the government’s FISA applications. But based on the government’s surveillance activities more broadly, we know that Muslims, in particular, are disproportionately targeted for FISA surveillance, and increasingly Chinese Americans appear to be targeted for this kind of surveillance, as well.

And what I think Comey is speaking to is more than sloppiness. I mean, he characterizes it as sloppiness, and it was certainly that, but these are profound errors. As just one example, the initial surveillance application relied on reporting from Christopher Steele, a former British intelligence agent. In subsequent applications, the FBI did not reveal the fact that it had interviewed Steele’s primary source, and the primary source had contradicted Steele’s assertions. The FBI made no mention of that. It just said that Steele’s primary source was truthful and cooperative. And without raising that conflict to the FISA Court, the FISA Court has no way to second-guess Steele’s representations. And that again illustrates the importance of adversarial review, which you would have in an ordinary criminal case.

NERMEEN SHAIKH: Well, you’ve said that it remains to be seen how representative this case is of the FBI’s actions. How will the — how will you find out whether it is representative or not?

ASHLEY GORSKI: Horowitz has committed to conducting an audit of traditional FISA surveillance that’s targeted toward Americans. One of the challenges with conducting that kind of audit, though, is that he isn’t going to be able to devote the same amount of resources into doing the kind of deep dive into those applications. And in many respects, it will involve kind of double-checking the paperwork that already exists. And that sort of double-checking won’t not necessarily reveal the types of errors and omissions that were revealed as a result of his deep dive into the Carter Page applications. And again, that is why disclosure to defense attorneys and defendants who are prosecuted with the aid of this surveillance is absolutely essential, so that there can be a more robust accounting for the FBI’s surveillance practices, and the mistakes and the misrepresentations it’s making in its applications.

AMY GOODMAN: Is FISA Court essentially a rubber stamp to, what, the intelligence agencies, the FBI, when they appeal to them? And do you think the FISA Court should be abolished, the Foreign Intelligence Surveillance Court, this highly secretive court?

ASHLEY GORSKI: It’s certainly a problematic institution. I wouldn’t necessarily characterize it as a rubber stamp. There is some degree of scrutiny of the government’s applications in an iterative process whereby those applications might be modified to some degree. But the real issue here is that it cannot continue in its current form. It needs to be fundamentally reformed. Another critical reform would involve Congress requiring the appointment of an amicus, especially in cases involving sensitive investigations, cases implicating significant First Amendment interests, cases implicating individuals who are associated with political campaigns. In that context in particular, you need to open up these proceedings to the light of some scrutiny from a neutral third party, at the very least.

AMY GOODMAN: So, to bring this back to President Trump, though this is usually targeted against those he targets, like, for example, Muslims, this is when he said, “I was wiretapped by President Obama.”

ASHLEY GORSKI: Much of the current debate has its genesis in those initial tweets in which President Trump said that his wires were tapped. And, of course, the inspector general found no evidence that President Trump was in fact a target of the FISA surveillance at issue.

AMY GOODMAN: Well, we will continue to follow this. Ashley Gorski, I want to thank you for being with us, staff attorney with the National Security Project at the American Civil Liberties Union.