Exhaustive Discussion on the released Memorandum, FISA, FISCs, Etc.

Since the opinion seems to vary widely, and I am not sure exactly what sources people are using for their information, I have decided to paste and parse the memorandum ("Memo") in an attempt to inform and (potentially) explain.

Enjoy!

The Memo begins as follows:

To: HPSCI Majority Members

From: HPSCI Majority Staff

Subject: Foreign Intelligence Surveillance Act Abuses at the Department of Justice and the Federal Bureau of Investigation

The HPSCI refers to the "House Permanent Select Committee on Intelligence," which may be located here.  The current chair is Devin Nunes (R. California), with the remaining members consisting of 12 Republicans and 9 Democrats. Pursuant to its own terms, the HPSCI:

[I]s charged with oversight of the United States Intelligence Community—which includes the intelligence and intelligence-related activities of the following seventeen elements of the U.S. Government—and the Military Intelligence Program.

Therefore, questions of abuses of power by the DoJ and the FBI would fall under the purview of this committee. The Memo continues...

Purpose...This memorandum provides Members an update on significant facts relating to the Committee's ongoing investigation into the Department of Justice (DOJ) and Federal Bureau of Investigation (FBI) and their use of the Foreign Intelligence Surveillance Act (FISA) during the 2016 presidential election cycle. Our findings, which are detailed below, 1) raise concerns with the legitimacy and legality of certain DOJ and FBI interactions with the Foreign Intelligence Surveillance Court (FISC), and 2) represent a troubling breakdown of legal processes established to protect the American people from abuses related to the PISA process.

So, okay. The Foreign Intelligence Surveillance Act, or "FISA," was sponsored by Senator Edward ("Ted") Kennedy in 1977, and signed into law in 1978. It has numerous effects, but for the purposes of the Memo, it established secret courts (secret, in this instance, meaning "not open to the public," versus "not known to exist") called "Foreign Intelligence Surveillance Courts, or "FISC"s. In order to conduct electronic surveillance on a United States citizen, a Federal officer and the attorney general must apply to a FISC to obtain a surveillance order, following certain procedures.

As part of the procedures, the Federal officer must supply to the FISC:

(3) a statement of the facts and circumstances relied upon by the applicant to justify his belief that— (A) the target of the electronic surveillance is a foreign power or an agent of a foreign power; and (B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power.

I think that this is the concern of the HPSCI staff, and that which prompted the investigation and the Memo. The Memo continues...

On October 21, 2016, DOJ and FBI sought and received a FISA probable cause order (not under Title VII) authorizing electronic surveillance on Carter Page from the FISC. Page is a U.S. citizen who served as a volunteer advisor to the Trump presidential campaign. Consistent with requirements under FISA, the application had to be first certified by the Director or Deputy Director of the FBI. It then required the approval of the Attorney General, Deputy Attorney General (DAG), or the Senate-confirmed Assistant Attorney General for the National Security Division.

The FBI and DOJ obtained one initial PISA warrant targeting Carter Page and three FISA renewals from the FISC. As required by statute (50 U.S.C. §,1805(d)(l)), a FISA order on an American citizen must be renewed by the FISC every 90 days and each renewal requires a separate finding of probable cause. Then-Director James Comey signed three FISA applications in question on behalf of the FBI, and Deputy Director Andrew McCabe signed one. Then-DAG Sally Yates, then-Acting DAG Dana Boente, and DAG Rod Rosenstein each signed one or more PISA applications on behalf of DOJ.

This is outlining how the actors involved obtained the permission to surveil Carter Page. Comey was appointed by President Obama, McCabe was appointed by Comey. Yates was appointed by President Obama, Boente was appointed to positions by both President Obama and President Trump, and Rosenstein was nominated by President Trump. The Memo continues...

Due to the sensitive nature of foreign intelligence activity, PISA submissions (including renewals) before the FISC are classified. As such, the public's confidence in the integrity of the FISA process depends on the court's ability to hold the government to the highest standard particularly as it relates to surveillance of American citizens. However, the FISC's rigor in protecting the rights of Americans, which is reinforced by 90-day renewals of surveillance orders, is necessarily dependent on the government's production to the court of all material and relevant facts. This should include information potentially favorable to the target of the FISA application that is known by the government.

This is leading somewhere, but to pause for a moment, I would like to briefly note the importance that an officer before a court include information potentially favorable to the surveillance target. The most important protection against illegal searches by a government entity is the 4th Amendment to the U.S. Constitution, to wit:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This was discussed at length as applied to warrants in a case called Franks v. Delaware, 438 U.S. 154, 164-65, 98 S. Ct. 2674, 2681 (1978). Importantly, the case held:

The bulwark of Fourth Amendment protection, of course, is the Warrant Clause, requiring that, absent certain exceptions, police obtain a warrant from a neutral and disinterested magistrate before embarking upon a search.  In deciding today that, in certain circumstances, a challenge to a warrant's veracity must be permitted, we derive our ground from language of the Warrant Clause itself, which surely takes the affiant's good faith as its premise: "[No] Warrants shall issue, but upon probable cause, supported by Oath or affirmation . . . ." Judge Frankel, in United States v. Halsey, put the matter simply: "[When] the Fourth Amendment demands a factual showing sufficient to comprise 'probable cause,' the obvious assumption is that there will be a truthful showing" This does not mean "truthful" in the sense that every fact recited in the warrant affidavit is necessarily correct, for probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant's own knowledge that sometimes must be garnered hastily.  But surely it is to be "truthful" in the sense that the information put forth is believed or appropriately accepted by the affiant as true. It is established law that a warrant affidavit must set forth particular facts and circumstances underlying the existence of probable cause, so as to allow the magistrate to make an independent evaluation of the matter.  If an informant's tip is the source of information, the affidavit must recite "some of the underlying circumstances from which the informant concluded" that relevant evidence might be discovered, and "some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, . . . was 'credible' or his information 'reliable.'

Keep in mind this part regarding "underlying circumstances" and credible information. Now, Franks has been interpreted and discussed many times since 1978, but importantly, it has been held not only to apply to disclosing underlying circumstances regarding sources of information, but also deliberately omitting relevant information. As the 9th Circuit Court of Appeals has held:

Under the first step of Franks, the defendant must show by a preponderance of the evidence that the affiant knowingly and intentionally, or with reckless disregard for the truth, made false or misleading statements or omissions in support of the warrant application.A negligent or innocent mistake does not warrant suppression. [A] warrant affidavit must set forth particular facts and circumstances . . . so as to allow the magistrate to make an independent evaluation of the matter. Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others. An officer presenting a search warrant application has a duty to provide, in good faith, all relevant information to the magistrate. United States v. Perkins, 850 F.3d 1109, 1116 (9th Cir. 2017).

Much of the remainder of the concern of the HPSCI investigators is related to these omissions and the potential biases displayed in actions relating to the FISA application:

1) The "dossier" compiled by Christopher Steele (Steele dossier) on behalf of the Democratic National Committee (DNC) and the Hillary Clinton campaign formed an essential part of the Carter Page FISA application. Steele was a longtime FBI source who was paid over $160,000 by the DNC and Clinton campaign, via the law firm Perkins Coie and research firm Fusion GPS, to obtain derogatory information on Donald Trump's ties to Russia.

a) Neither the initial application in October 2016, nor any of the renewals, disclose or reference the role of the DNC, Clinton campaign, or. any party/campaign in funding Steele's efforts, even though the political origins of the Steele dossier were then known to senior DOJ and FBI officials.

(b) The initial FISA application notes Steele was working for a named U.S. person, but does not name Fusion GPS and principal Glenn Simpson, who was paid by a U.S. law firm (Perkins Coie) representing the DNC ( even though it was known by DOJ at the_ time that political actor􀄅 were involved with the Steele dossier). The application does not mention Steele was ultimately working on behalf of-and paid by-the DNC and Clinton campaign, or that the FBI had separately authorized payment to Steele for the same information. 

2) The Carter Page FISA application also cited extensively a September 23, 2016, Yahoo News article by Michael Isilcoff, which focuses on Page's July 2016 trip to Moscow. This article does not corroborate the Steele dossier because it is derived from information leaked by Steele himself to Yahoo News. The Page FISA application incorrectly assesses that Steele did not directly provide information to Yahoo News. Steele has admitted in British court filings that he met with Yahoo News -and several other outlets- in September 2016 at the direction of Fusion GPS. Perkins Coie was aware of Steele's initial media contacts because they hosted at least one meeting in Washington D.C. in 2016 with Steele and Fusion GPS where this matter was discussed.

a) Steele was suspended and then terminated as an FBI source for what the FBI defines as the most serious of violations-an unauthorized disclosure to the media of his relationship with the FBI in an October 30, 2016, Mother Jones article by David Com. Steele should have been terminated for his previous undisclosed contacts with Yahoo and other outlets in September-before the Page application was submitted to the FISC in October-but Steele improperly concealed from and lied to the FBI about those contacts.

b) Steele's numerous encounters with the media violated the cardinal rule of source handling-maintaining confidentiality-and demonstrated that Steele had become a less than reliable source for the FBI.

3) Before and after Steele was terminated as a source, he maintained contact with DOJ via then-Associate Deputy Attorney General Bruce Ohr, a senior DOJ official who worked closely with Deputy Attorneys General Yates and later Rosenstein. Shortly after the election, the FBI began interviewing Ohr, documenting his communications with Steele. For example, in September 2016, Steele admitted to Ohr his feelings against then candidate Trump when Steele said he "was desperate that Donald Trump not get elected and was passionate about him not being president." This clear evidence of Steele's bias was recorded by Ohr at the time and subsequently in official FBI files-but not reflected in any of the Page FISA applications.

a) During this same time period, Ohr's wife was employed by Fusion GPS to assist in the cultivation of opposition research on Trump. Ohr later provided the FBI with all of his wife's opposition research, paid for by the DNC and Clinton campaign via Fusion GPS. The Ohrs' relationship with Steele and Fusion GPS was inexplicably concealed from the FISC.

4) According to the head of the FBI's counterintelligence division, Assistant Director Bill Priestap, corroboration of the Steele dossier was in its "infancy" at the time of the initial Page PISA application. After Steele was terminated, a source validation report conducted by an independent unit within FBI assessed Steele's reporting as only minimally corroborated. Yet, in early January 2017, Director Comey briefed President-elect Trump on a summary of the Steele dossier, even though it was-according to his June 2017 testimony-"salacious and unverified." While the PISA application relied on Steele's past record of credible reporting on other unrelated matters, it ignored or concealed his anti-Trump financial and ideological motivations. Furthermore, Deputy Director McCabe testified before the Committee in December 2017 that no surveillance warrant would have been sought from the FISC without the Steele dossier information.

5) The Page FISA application also mentions information regarding fellow Trump campaign advisor George Papadopoulos, but there is no evidence of any cooperation or conspiracy between Page and Papadopoulos. The Papadopoulos information triggered the opening of an FBI counterintelligence investigation in late July 2016 by FBI agent Pete Strzok. Strzok was reassigned by the Special Counsel's Office to FBI Human Resources for improper text messages with his mistress, FBI Attorney Lisa Page (no known relation to Carter Page), where they both demonstrated a clear bias against Trump and in favor of Clinton, whom Strzok had also investigated. The Strzok/Lisa Page texts also reflect extensive discussions about the investigation, orchestrating leaks to the media, and include a meeting with Deputy Director McCabe to discuss an "insurance" policy against President Trump's election.

In essence, then, the Memo is arguing that the Steele dossier, compiled at the behest of a campaign opposed to Trump, should not have served as the basis for the obtaining of a FISA order of surveillance on Carter Page, or that it should have at least revealed the presence of information obtained and paid for by a political opponent of President Trump.