Rosemary Collyer Responds to the DOJ IG Report in Fairly Blasé Fashion

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Judge Rosemary Collyer just released a four page order responding to the DOJ IG Report showing problems with Carter Page’s FISA applications.

Before I explain the letter further, let me just explain for those who haven’t followed my FISA work. Collyer is the presiding judge of the court. Traditionally, it falls to the presiding judge to scold DOJ when things go haywire, and so it was to be expected that Collyer would write this. Collyer is nowhere near the most aggressive presiding judge in the court’s history (that honor might go to Reggie Walton, though Royce Lamberth was presiding when the Woods Procedures that weren’t followed here were introduced after he bitched about systematic problems). As an example, she wrote what I consider to be among the worst programmatic FISA opinions not written by a Dick Cheney flunkie, and she was reluctant to implement the new amicus mandated by Congress in the USA Freedom Act.

Predictably, while this is a sharp opinion, it’s not that onerous. She starts by spending a page explaining why candor is so important for the FISC, language that is probably for the benefit of those unfamiliar with the court. She cites three prior opinions complaining about lack of candor, just one of which I consider among the greatest hits.

She then reviews the problems laid out in the IG Report she considers most important, citing:

  • The failure to explain Carter Page’s past relationship with the CIA
  • Exaggerations about the degree to which Christopher Steele’s reporting had been corroborated
  • Contradictions of Steele’s claims made by his sub-source
  • Page’s denials he had worked closely with Paul Manafort
  • Page’s denials he knew the two Russians described in the Steele dossier
  • Details suggesting claims attributed to Sergei Millian in the dossier were unreliable

In addition, Collyer dedicates a paragraph to describing Kevin Clinesmith’s alteration of an email to hide Page’s prior CIA relationship, alluding to a prior order in which she seems to have ordered a review of everything he had touched.

In addition, while the fourth electronic surveillance application for Mr. Page was being prepared, an attorney in the FBI’s Office of General Counsel (OGC) engaged in conduct that apparently was intended to mislead the FBI agent who ultimately swore to the facts in that application about whether Mr. Page had been a source of another government agency. See id. at 252-56. The information about the OGC attorney’s conduct in the OIG report is consistent with classified submissions made to the FISC by the government on October 25, 2019, and November 27, 2019. Because the conduct ofthe OGC attorney gave rise to serious concerns about the accuracy and completeness of the information provided to the FISC in any matter in which the OGC attorney was involved, the Court ordered the government on December 5, 2019, to, among other things, provide certain information addressing those concerns.

In addition to ordering the declassification of that December 5 order, Collyer also ordered the FBI to explain, by January 10, what they’re going to do to fix the more general problem.

THEREFORE, the Court ORDERS that the government shall, no later than January 10, 2020, inform the Court in a sworn written submission of what it has done, and plans to do, to ensure that the statement 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. In the event that the FBI at the time of that submission is not yet able to perform any of the planned steps described in the submission, it shall also include (a) a proposed timetable for implementing such measures and (b) an explanation of why, in the government’s view, the information in FBI applications submitted in the interim should be regarded as reliable.

So she’s not calling for the FISC itself to do anything different. FBI will likely provide a plan implementing the FISC-based recommendations made by Michael Horowitz, as well as additional updates to the Woods Procedures.

This is, in the grand scheme of things, an order deferring to the government to fix the problem, not an order designed to impose new requirements (of the kind Lamberth himself ordered years ago) from the court until FBI proves it has cleaned up its act.

Which leaves it up to Congress to impose any more substantive fixes.

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32 replies
  1. orionATL says:

    if you want to use the carter page fisa/fbi encounter to improve the fbi’s practice, fine. go ahead. it could use some improvement, some rigor.

    if you want to insist that carter page was a victim of serious fbi misconduct or political vindictiveness, i think you have a ways to go with only the carter page case. for one, carter page played footsy with the russians prior to the fisa submission. that he may have visited or talked with the cia is no compelling deterrent to putting him under surveillance unless his business with the cia was known and acceptable.

    as for serious misconduct with the carter page case, you (or michael horowitz) really would need to take a number of similar cases (let’s say 50, or maybe 100) and analyze them together on the same set of measures to determine if the page case was out of line. in a recent interview james comey was quoted as saying of the page case something along the lines of “a fisa warrant is incredibly difficult to obtain.” my point is not that i think comey is right, but that it may well be the case that the fbi behaved in all such circumstances as if that were the case. this would be akin to the behavior officers refer to privately as “testalying” (speaking of their sworn court testimony).

    the key point for me is that president trump and attny gen barr have no more interest in improving our system of justice using the abuse of the c. page fisa warrant process as guidance than they have in getting rid of corruption in the ukrainian justice system. their bottom line is to excuse or at least obscure our president’s culpability in extorting a fake investigation from the ukrainian president on the threat of withholding $400 million in congressionally approved military aid for ukraine designed to help keep the russians at bay. this military aid was considered by ukranian officials as critical for their nation – hence the use of the term extortion to describe president trump’s demands of president zylensky.

    • orionATL says:

      ig horowitz’s criticism of the fni’s fisa warrant protocol, or lack thereof, will have to wait for another president to take office.

      if president trump selects an fbi director with the scruples of attny. gen. barr, then trump will welcome any current short cuts and abuses in order to facilitate conducting the pogrom he clearly has in mind to punish his critics and impeachers.

  2. manqueman says:

    Well, this pretty much addresses what I wondered about: If the FISC had issues with how the FBI gets subpoenas, it’s a little bizarre that after alll the rubber stamping over the years they’re finally bothered by one.
    Of course, rubber stamping is FISC’s heritage as is pulling shit the FBI’s.
    Looks like going forward, the FBI needs to assure FISC more than have so they’ll can continuing rubber stamping without bothering with any review of the requests.

    • bmaz says:

      “Rubber stamping”. Lol. Get a grip, that is the case of ALL warrant applications, in every court, every day. Also, see my other comment below.

  3. Katherine M Williams says:

    Regardless of whether the Collyer response is serious or mild, the press is already making big deal over the FBI “errors”, lending support to the republicans’s claims that the whole investigation was a witch-hunt.

    • harpie says:

      …and Fox News has reached it’s intended audience:
      https://twitter.com/realDonaldTrump/status/1207076582629761024
      3:14 PM – 17 Dec 2019

      Wow! “In a stunning rebuke of the FBI, the FISA court severly chastised the FBI for the FISA abuses brought to light in the recent Inspector General’s Report. There were at least 17 significant errors.” @FoxNews Statement by the Court was long and tough. Means my case was a SCAM!

      • errant aesthete says:

        Harpie,

        Your response to Katherine (M. Williams) was pitch-perfect…

        Katherine,

        … as was your setup.

        All to the good for EW and its readership.

  4. Vinnie Gambone says:

    Given the IG review and findings, I’d be willing to bet they still got warrants for Guliani, Parnas, Frumen, and others. Parts of the Ukrainian Aid legislation seems to empower the State Department, the treasury, and the DOJ to take actions and spend money cleaning Ukraine up. Ambassador Yovanovitch was taken out for doing her job. Has there been any reports on the success or failures of actions taken by the USA by virtue of the Ukrainian Aid Act or the Kleptocracy Act? They have the guns to go big game hunting. They bag anything yet?
    I may be wrong about treasury and DOJ, but state was given real tools to work with on this. We already have a team in Ukraine doing what Rudey’s claims to be doing . The difference is one team is finding real dirt, and the other is making it up. Rudey, stop looking for the 400 lb hacker find the missing $40 Billion.

  6. TomA says:

    Faux outrage and token rule changes are intended solely to mollify the public-at-large and militate any political backlash by voters. As with the prior Woods Procedure “fix”, at any time in the future, a corrupt FBI can (and likely will) find a loophole or alternative path around the “new rules.” When that happens, it is the common citizen that gets injured by government-sanctioned tramping on Constitutional privacy rights. We are at least two slips down the slippery slope on FISA now. How bad does it have to get before we recognize that one-sided ex parte justice is no justice at all?

    • bmaz says:

      Dude, ALL warrants are ex-parte. All of them. That is the nature of the beast. This is a false talking point.

      • Arj says:

        Kinda like the idealism implicit in the principle that one could only be investigated by consent. A certain person about to be ‘peached might like it too.

      • TomA says:

        You’re right. I should have emphasized the highly secretive nature of the FISA process as the key weakness in the system. There can be no remedy to corruption when all proceedings occur in the dark (and ex parte). Society must rely on the goodwill and honesty of the law enforcement institutions, but how would you know if a cop was dirty if his main skill set is to hide his corruption?

        • Katherine M Williams says:

          Perhaps a problem is with the FBI and other law enforcement agencies being so rigidly conservative, with the “Heads” almost being republican, and for some reason people in general thinking that is a good thing.
          Everyone seems to believe a conservative republican investigator will be more efficient and somehow less biased than a more progressive-thinking investigator.
          Even when that may (mostly) be the case, as with Mueller, he was so rigidly “conservative” he acquiesced to a terrible, possibly illegal rule (that the president can’t be charged with a crime!!!) created by republicans to protect a criminal republican president decades ago. I hope a more progressive investigator would have challenged that shocking “rule”. After all, it isn’t a law passed by congress. Mueller didn’t have to give it -and Russia collaborator criminal obstructor Trump- validity.

  7. sproggit says:

    Quick typo: “Collyer is nowhere hear the most aggressive presiding judge” should be “nowhere *near*”

  8. Jim C says:

    Judge Royce Lamberth, a Reagan-era appointee, was the presiding judge for the Cobell vs. US case. He charged at least three cabinet-level officers with comtempt, and was ultimately removed from the bench on trumped-up charges about his competence.

    • bmaz says:

      Let’s be clear about this, Lamberth was never “removed from the bench”. He is still a Senior Judge in the DC District, although currently temporarily serving in Texas, his home state. He was removed from Cobell, wrongfully in my opinion, but because of perceived bias from using very strong language in rulings on the case, not lack of competence. We try to get things right here. Welcome to Emptywheel, please join in often.

  9. bmaz says:

    Couple of things here. It should be noted that Lamberth, when he departed for Senior status, fulsomely supported and praised the FISC. Secondly, warrants are warrants. The basic law is the same, even if FISC is a specialized and secretive court. Candor is necessary, the application must establish probable cause, and the applications are to be judged on their four corners etc. So, really, it IS the government that needs new procedures, not the court itself.

    Furthermore, for all the overwrought handwringing on the Page applications, and screeching by Page supporters and Horowitz, I see little chance they would not have survived a Franks challenge.

    Warrant law in actual practice is quite a bit different than the scholarly people at Lawfare, other sites and Horowitz himself, let on. Oh, and one other thing, while people conveniently grouse about the “rubber stamp high rate of issuance by the FISC”, the FISC is actually far more selective and tough than regular district courts are on Title III applications. But, hey, it’s a sweet story to pitch about FISC right now.

    • bmaz says:

      Thinking about this, I should probably explain what the basic Franks standard for evaluating warrants is. So, here is a thumbnail sketch.

      Franks requires that there be established that there are errors in the affiant’s affidavit, that the errors and/or omissions were material to the core ask of the application, and that with those matters excepted, the application would not have been accepted by the court as sufficient probable cause to issue the warrant.

      To say that such is an incredibly high standard that is almost never met is an understatement. I have had cases where I caught the law enforcement officials flat out lying through their teeth on one or more elements, but where the court still found, excising that, there was still sufficient information for probable cause. Because that is the way the law is. And, yeah, that same basic law applies to FISC warrants, which is why I think the Page applications would stand up despite Horowitz’s after the fact tut tutting.

      Collyer, Lamberth and Walton all know this. So that is why you will not see them, or any former FISC judge, saying any of the Page warrant apps fail. It is easy for law profs and journalists to argue the defectiveness of the Page applications, but they don’t do this in court.

      Were the Page applications subjected to a Franks standard, they almost certainly still stand. Sure, tweak the DOJ, FBI (and all law enforcement) guidelines for drafting warrant applications (and not just to FISC, but all courts), but let’s be honest about the status of them under extant law.

        • Eureka says:

          Ha-That’s what I was thinking the whole time I was reading his comments (minus the side eye on my end, of course).

          Also, on all this “in theory vs in practice” stuff (here and the Flynn page), I take bmaz’s word as always.

          Fundamental of anthropology: what do people say they do, versus what do people do.

  10. harpie says:

    Horowitz is testifying again today:
    https://twitter.com/washingtonpost/status/1207293628172910592
    5:36 AM – 18 Dec 2019
    Justice Dept. inspector general to testify for a second time about his Russia probe assessment
    https://www.washingtonpost.com/national-security/justice-dept-inspector-general-to-testify-for-a-second-time-about-his-russia-probe-assessment/2019/12/17/1dfb6d0a-20f4-11ea-86f3-3b5019d451db_story.html
    Matt Zapotosky Dec. 18, 2019 at 7:00 a.m.

    […] Inspector General Michael Horowitz is scheduled to appear at 10 a.m. before the Senate Homeland Security and Governmental Affairs Committee. He testified last week on the same topic before the Senate Judiciary Committee, asserting that the bureau was justified in opening the investigation but that FBI leaders should not take that as vindication, because of other, serious failures made after that. […]

  13. Vicks says:

    I know, that I should know, how and when the knowledge of Page’s FISA was first made public, but all I can recall is Nunes & Co making wild claims of what was in it, and then their manic jumping and waving when they got possession of the redacted version.
    Isn’t the fact that counter intelligence information on an American citizen got into the grubby hands of politicians and out to the public a huge part of the problem?
    Like I said I can’t remember how we first learned Page was under surveillance, and not to be dismissive of the mistakes that were made, but if Carter Page’s life is “ruined” perhaps it wasn’t because FBI ran a covert counter intelligence operation, but because republicans exploited what should have been a forever secret for their own gain?

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