PPSA applauds John Durham, the U.S. Attorney tasked with investigating the origins of the Trump-Russia investigation, for achieving an important milestone in the guilty plea of former FBI lawyer Kevin Clinesmith.
During the FBI’s Trump-Russia investigation, Clinesmith told the Foreign Intelligence Surveillance Court (FISC) that Trump campaign advisor Carter Page was not a CIA source. This turned out to be a lie. To sell that lie, Clinesmith modified CIA emails and included those emails in a foreign intelligence surveillance application. Without a court-appointed privacy expert to fact-check the FBI, the FISC ultimately approved four such applications against Page.
Clinesmith recently pleaded guilty to making false statements to FISC. But Clinesmith’s lies went undiscovered for too long.
The FISC’s one-sided procedures for obtaining a warrant invite such abuses. In most instances, the FISC considers only the government’s application. Armed only with one side’s arguments, the FISC decides whether to grant applications implicating the privacy of targeted U.S. persons.
The Foreign Intelligence Surveillance Act, as amended, allows minimal oversight by allowing FISC to appoint “amici” (outside lawyers with privacy expertise) to review the government’s filings for accuracy and address any constitutional issues. The 2015 USA Freedom Act requires the FISC to appoint an amicus when an application “presents a novel or significant interpretation of the law” unless, in its discretion, the FISC finds that an amicus would be inappropriate. See: 50 U.S.C. §1803(i)(2)(A). It allows the FISC to appoint an amicus in undefined “appropriate” circumstances: Id. (i)(2)(B).
The result of such broad discretion is predictable. Although “Congress … has expressed a clear preference for greater amicus curiae involvement in certain types of FISC proceedings,” such involvement remains the exception.[i] Mandatory annual reports[ii] show how rare the appointment process is. In the five years since the USA Freedom Act, FISC has only appointed an amicus sixteen times!
In March, the bipartisan team of Senators Mike Lee and Patrick Leahy sought to amend the law to require further amicus involvement. The Lee/Leahy Amendments listed different circumstances where an amicus was required, such as where an application (1) raised “significant” First Amendment concerns or (2) involved:
Beyond these amicus amendments, Lee/Leahy also required all FISA applications to include:
Had Lee/Leahy applied to the Carter Page application, FISC would likely have appointed an amicus. Page, after all, was a 2016 Trump staffer, Lee/Leahy expressly provided amicus assistance in applications involving similarly situated workers. With the complete record, an amicus would likely have (1) flagged Clinesmith’s alterations, (2) saved FISC from granting four surveillance applications without cause, (3) protected Carter Page from becoming the public face of the Mueller investigation, and (4) preserved the FBI’s integrity.
The Carter Page saga serves as a warning about the dangers of an unaccountable executive. Congress should enact the Lee/Leahy Amendments to prevent such abuse again.
[i] Opinion and Order at 7, In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things/In re Motion in Opposition to Government’s Request to Resume Bulk Data Collection Under Patriot Act Section 215, No. BR 15-75 (June 29, 2015), https://www.fisc.uscourts.gov/sites/default/files/BR%2015-75%20Misc%2015-01%20Opinion%20and%20Order.pdf.
[ii] 2015 Report of the Director of the Administrative Office of the United States Courts, https://www.uscourts.gov/sites/default/files/fisc_annual_report_2015.pdf; 2016 Report of the Director of the Administrative Office of the United States Courts (Apr. 20, 2017), https://www.uscourts.gov/sites/default/files/ao_foreign_int_surveillance_court_annual_report_2016_final.pdf; 2017 Report of the Director of the Administrative Office of the United States Courts (Apr. 25, 2018), https://www.uscourts.gov/sites/default/files/ao_foreign_int_surveillance_court_annual_report_2017.pdf; 2018 Report of the Director of the Administrative Office of the United States Courts (Apr. 25, 2019), https://www.uscourts.gov/sites/default/files/fisc_annual_report_2018_0.pdf; 2019 Report of the Director of the Administrative Office of the United States Courts (Apr. 25, 2018), https://www.uscourts.gov/sites/default/files/ao_foreign_int_surveillance_court_annual_report_2017.pdf; 2019 Report of the Director of the Administrative Office of the United States Courts (Apr. 27, 2020), https://www.uscourts.gov/sites/default/files/fisc_annual_report_2019_0.pdf.