New information about the Steele dossier highlights the need to create a strong presumption for appointing a privacy-protecting amicus when the FBI seeks permission to surveil U.S. persons in sensitive cases before the Foreign Intelligence Surveillance Court (FISC).
When the Inspector General released his heavily redacted report on the Crossfire Hurricane investigation last year, it revealed that Steele “was not the originating source of any of the factual information” in the Steele dossier and “relied on a primary sub-source” for information. Last week, Attorney General William Barr revealed, for the first time, that “[t]he Primary Sub-source was the subject of an FBI counterintelligence investigation from 2009 to 2011 that assessed his/her documented contacts with suspected Russian intelligence officers.”
That a multi-year investigation into U.S. political actors could be triggered by information from a suspected Russian contact that was not revealed as such to the FISC reveals serious flaws with the procedures before that court. Although the earlier counterintelligence investigation into this suspected contact was dropped when the source “left the United States,” certainly the FISC should have been informed before being asked to take the serious step of allowing the FBI to surveil the political campaign of a candidate opposing the party in power. The antidote to such serious procedural mistakes has already been introduced in Congress and passed the Senate by a wide margin.
Congress should amend the Foreign Intelligence Surveillance Act and implement important changes first suggested by the bipartisan team of Senators Mike Lee and Patrick Leahy. When the government seeks to surveil United States persons, particularly those who are members of a political campaign, as Carter Page was, FISC should appoint someone to factcheck and push back against the government’s surveillance applications.
What else do we know about the Primary Sub-source? His/her ties were extensive enough that the FBI “initiated a request” for a FISA application to surveil him/her in July 2010. The FBI knew, in 2016, about both the prior FISA application and the individual’s Russian ties. In normal times, this knowledge would have given the investigators pause. At the very least, this fact should have caused the FBI to question the Primary Sub-source’s credibility. Instead, the team “interviewed the Primary Sub-source over the course of three sequential days in January 2017,” months after they had already relied on his/her claimed intel in the Steele Dossier to obtain and renew surveillance against Carter page. Perhaps those interviews allayed any concerns they might have had, perhaps not. Either way, the FISC should have been informed of the circumstances and the concerns.
This timeline highlights the need to ensure that the FISC has authority and incentive to appoint an amicus to participate in all such sensitive investigations. As we have urged before, an amicus should be able to review the FBI’s application for accuracy, thereby holding the FBI accountable and ensuring that the privacy rights of any U.S. persons are protected. Nowhere is that point more conspicuous than in the Crossfire Hurricane investigation. If the FISC had appointed an amicus, that amicus could have highlighted the problem with relying on the Steele Dossier whose Primary Sub-source had suspected Russian ties, and the court could have demanded more information or at least earlier FBI follow-up on the Primary Sub-source and his/her claimed information. As the Attorney General recognizes, this information “bears upon the FBI’s knowledge concerning the reliability of the dossier.”
An amicus, presumably, would recognize this concern as well. It is because of issues like this that PPSA has so consistently argued that the Foreign Intelligence Surveillance Act should be amended to more regularly allow—or sometimes even require—amicus participation in the FISA application process.
In a Senate Judiciary Committee hearing on Wednesday, Sen. Mike Lee said that “there is no planet on which … things were okay within the FBI in connection to this investigation.” When the government is allowed to be the only body before the FISC, it faces no accountability when it fails to fully enumerate information weighing against its applications. As a result, American privacy rights suffer. Congress should act swiftly to correct this imbalance and limit the government’s one-sided communications with the FISC.
You can read the Attorney General’s letter to Lindsey Graham, and the summary of the Primary Sub-source investigation it included, here.