Foreign Intelligence Surveillance Court (FISC) Presiding Judge Rosemary M. Collyer has rebuked the FBI and National Security Division of the Department of Justice. The court’s order calls out the Department’s handling of the Carter Page bugging operations, and details how all four applications to surveil Mr. Page were tainted.
The malfeasance of the DOJ and its subordinate offices was laid bare in the recent Office of Inspector General (OIG) report, referenced in the order, all in service to the lie that Page was a foreign agent. Judge Collyer’s four-page order commands the DOJ to make clear what it will do to ensure future filings are not filled with lies convenient for the government and in violation of the legal and ethical obligations under which it is supposed to operate. She also instructed it to complete a declassification review of a separate order about a doctored email.
The former Trump campaign adviser Carter Page is not, and was not, a “foreign government agent.” That is a vital fact surrounding the Obama administration’s attempt to get court-ordered taps for his communications. FISCs are permitted by statute only to grant secret wiretaps when the target is a “foreign power” or an “agent of a foreign power.”
Judge Collyer, a George W. Bush appointee to the federal bench, discussed how the FBI provided information through the DOJ to the court that “was unsupported or contradicted by information in their possession.” She went on to cite “several instances” when the FBI withheld information from the DOJ and thus the FISC that “was detrimental to their case for believing that Mr. Page was acting as an agent of a foreign power.” The FBI was duty-bound to tell the court it had lots of information arguing against the notion that Page was a foreign agent. Instead of reporting that, the agency conspired to prevent the FISC from learning the facts.
Duty of Candor
The FISC is a court which, by nature, handles ex parte proceedings. These are cases where only one side is heard. No surveillance target has the chance to challenge the secret application; only the government’s side is presented. That makes the duty of candor to the court all the more important, a duty dismissed by President Obama and the office of his Attorney General, Loretta Lynch.
A duty of candor to the court is something all attorneys who go to court learn early in their careers. Judges rely on counsel not simply to state the best case for their client but to adhere to a standard of professional conduct. This is not the case just for ex parte proceedings, but all judicial affairs. If opposing counsel sends a text letting you know he or she will be late for court, and you see the person texted a wrong number for the judge’s clerk, the duty of candor and forthrightness requires you to notify the court. This duty is enhanced and magnified exponentially when dealing with ex parte proceedings. Judge Collyer wrote that the court:
“[E]xpects the government to comply with its heightened duty of candor in ex parte proceedings at all times. Candor is fundamental to this Court’s effective operation …”
She added that the FBI and DOJ breach of duty in the four Carter Page applications before the FISC “calls into question whether the information contained in other FBI applications is reliable.” Judge Collyer called the FBI’s conduct “antithetical to the heightened duty of candor” required in the court.
Ordered to Show Compliance
In light of the facts reported by the Office of Inspector General’s report, Collyer instructed the government to provide sworn submissions of “what it has done, and plans to do, to ensure that the statements of facts in each FBI application accurately, and completely reflects information possessed by the FBI that is material to any issue presented by the application.” The OIG has until January 10 for that deadline. On top of this task is another: The FBI has until Friday, December 20, to complete a declassification review regarding an FBI attorney who the Inspector General said altered an email describing Page’s interactions with the CIA.
Given the FBI’s history, the smart money bet is that this story will be forgotten before long, and the agency will return to its slapdash, slipshod methods to get what it wants. Acting in “service” while inconveniencing itself little, and with zero regards for the constitutionally recognized rights of those it is sworn to protect, is sadly par for the course for the Bureau. The FBI headquarters proudly bears the name of a serial felon, likely responsible for a plot to get Martin Luther King Jr. to commit suicide, and the blackmail of congressmen and presidents. The J. Edgar Hoover Building stands as a constant reminder of the values the organization holds dear, and of why we should be skeptical of those who demand extraordinary power to “protect” us.
Read more from Scott D. Cosenza.