I had a wide range of investigative and prosecutorial duties as a special attorney with the Organized Crime and Racketeering Section of the Department of Justice in the 1970s. From trying cases in court and conducting grand jury investigations, to visiting crime scenes, developing confidential informants, and taking to the streets to locate and interrogate witnesses, I was privileged to work closely with the FBI, DEA, ATF, IRS and state and local police agencies. I also prepared numerous applications for court-ordered electronic surveillance and monitored the wiretap and bugging operations that followed.
If we wanted authorization to plant a listening device or wiretap someone, we had to submit a sworn affidavit to a federal district judge demonstrating we had probable cause to believe a crime was being committed and that evidence of that crime would be obtained by intercepting communications over the phone lines to be monitored or at the location to be bugged. We also had to explain that normal, less invasive investigative procedures had been tried and failed, or would be unlikely to succeed, or would be to dangerous.
“Probable cause” here did not mean proof beyond a reasonable doubt, but that the facts in the affidavit would lead a reasonable person to believe that a crime was being committed and that the proposed intercept would produce evidence of that crime.
The supporting affidavit would invariably be based on information from a so-called “reliable informant.” Reliability could be established two ways. The affidavit could show the informant had previously provided truthful information, by including a statement indicating the number of times the source had proved reliable and a brief description of the information they provided.
The affidavit could also set forth corroboration of the information from the source, whether from physical surveillance or some other means. For example, the results of surveillance showing a person going in and out of a relevant location. This kind of corroboration would be included to support a probable cause finding, even if the informant had proved previously reliable.
Drafting the application and probable cause affidavit was rigorous and difficult. To the extent humanly possible, we made sure that both were completely truthful and amply established all of the legal elements necessary to show probable cause. There were no shortcuts taken and no fudged facts.
Those supporting facts had to be “fresh” too. They could be no more than 14 days old. This requirement caused no end of aggravation. The application and affidavit had to undergo time-consuming parallel vetting processes at Main Justice and FBI headquarters. As a result, those of us in the field were constantly working against the clock and were forced to laboriously update the probable cause application, while the bureaucrats in Washington took their sweet time reviewing our handiwork. It was not unusual for the paper pushers to reject an application which had gone “stale” while it sat in their inboxes awaiting their attention.
In any event, once the package was approved, we would receive a letter from the Attorney General authorizing us to apply to the court for an interception order. This letter would be attached to the application.
The attesting agent and I would then meet in chambers with a federal judge to present the application and obtain the interception warrant. This, of course, was done in secret, and the length of these meetings depended on the complexity of the case and the judge’s interest and diligence.The average application with affidavit and exhibits ran about an inch thick. The size varied with the scope of the case.
Some judges would read the package carefully and ask probing questions before signing the intercept order. But most would do a quick review and then issue the warrant. And by quick, I do mean quick.
There was one judge who simply refused to read the application. This legal giant had been appointed by President Franklin Roosevelt in the mid 1930s. He was very old, hard of hearing, cantankerous and impatient. All he wanted to see was the letter from the Attorney General. As far as he was concerned, if the Attorney General thought this wiretap or bug was a good idea, that was good enough for him. So, scribble-scribble, here’s your order, now get out!
To his credit, he was a stand up guy. When defense lawyers would later argue for the suppression of the intercepted communications, he would thunder from the bench, “That’s stupid! I signed the order! You want me to reverse myself?”
So much for the Founding Father’s quaint notions about an independent judiciary and illegal search and seizure.
The intercept orders were limited to the shortest time needed to achieve the investigative purpose, up to a limit of thirty days. If we wanted an extension of the order, we had to demonstrate to the court that the intercept had been “productive,” that we were getting results. For example, if we were wiretapping bookmakers, we had to show the court that we had intercepted evidence of bookmaking. We also had to demonstrate a need for continuing the wiretap, such as to follow an evolving criminal scheme.
Now everything that I just told you pertains to court ordered electronic surveillance procedures in domestic criminal cases. I have never appeared before the Foreign Intelligence Surveillance Court (FISC), but I have studied its procedures and have compared them to my experiences with electronic surveillance as a federal and state prosecutor and as a defense lawyer.
So hear me out.
The standard for obtaining a warrant pursuant to the Foreign Intelligence Surveillance Act (FISA) is somewhat lower than that required for a domestic wiretap. This is because the Fourth Amendment prohibition against unreasonable searches and seizures applies to domestic surveillance. But FISA deals with counterintelligence operations against foreign powers which don’t have constitutional rights.
Nevertheless, to obtain a FISA warrant to conduct electronic surveillance on a United States’ citizen, the FBI must show probable cause that the target is an “agent of a foreign power” who is knowingly engaging “in clandestine intelligence activities.” In addition, these clandestine activities must likely constitute one or more felonies under federal law, such as engaging in sabotage, terrorism or using a false or stolen identity.
The FISA probable cause standard is similar in many respects to that in domestic criminal cases. It is not proof beyond a reasonable doubt. Rather it is comprised of evidence that would cause a reasonable person to conclude that the subject could be a spy for a foreign government or organization. From this standpoint, the FISA probable cause standard is slightly lower lower than that required in a domestic criminal case.
In the FISA context, issues related to probable cause may include whether the proposed surveillance target had access to classified information, was a likely candidate to be recruited by foreign agents, or had been mentioned in intercepts of other foreign actors or similar considerations. It has to tend to support a claim that the subject is knowingly and intentionally acting on behalf of a foreign government or organization.
FISA warrants go through purportedly stringent parallel vetting processes by FBI headquarters and the DOJ’s National Security Division. The effort is said to ensure the application is truthful and to eliminate unsupported or unsubstantiated assertions.
Once the FBI and DOJ have approved, the application is presented to the FISC for its consideration and action. How careful and diligent are the FISC judges in reviewing the applications before they issue the intercept orders? I have no idea. Presumably they take their obligations seriously. But I wouldn’t be surprised if the level of care varied depending on the individual judge reviewing the application. Hopefully none of them behave like the antiquarian Roosevelt appointee who signed off on some of my wiretaps.
Now let’s apply all this to the FISA warrant and three renewals used to spy on Carter Page, the former affiliate of the Trump presidential campaign. Unfortunately, since we do not have access to the actual FISA documents, our analysis must be based on the dueling memos by the majority and minority of the House Intelligence Committee.
The Republican memo states that the probable cause affidavit for the Page warrant relies almost exclusively on the anti-Trump dossier compiled by former British spy and FBI informant Christopher Steele. This memo also states that neither the initial FISA application 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.”
Instead, according to the Republican memo, the initial application merely recites that there was an unspecified political provenance to the dossier but “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.”
The memo also states that, although Steele had admitted to DOJ official Bruce Ohr 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 “not reflected in any of the Page FISA applications.”
Continuing in this vein, the memo states, “While the FISA 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.”
The implication here is that these omissions misled the FISC into issuing the warrant to spy on Page when, if all of the facts had been included, the court would have rejected the application. While this may be true, and there may have been a calculated effort to deceive the court, I am struck by how the Page application — at least as characterized by the Republican memo — seems to follow the same probable cause format that we used in our domestic criminal affidavits.
In my cases, I frequently based probable cause on the word of felons, many of whom had questionable motives for providing the information which was put in the affidavits. It was almost impossible to find an informant who wasn’t a criminal. In some cases, they were absolute scum. But they had previously provided accurate information so they were reliable enough for our purposes.
The point here is that Steele may have been anti-Trump and he may have been paid by the DNC and the Clinton campaign. But was there a clearly defined legal obligation to disclose those matters to the FISC? In our domestic criminal probable cause affidavits, we never dwelled on our informants’ seedy backgrounds and less than honorable motives. Why? Because all of our informants were morally challenged, and we weren’t required to discuss their repellent characters or nefarious ulterior motives.
Things may be different under FISA, but I doubt it. Moreover, if the FISA application spelled out how Steele had previously provided true information, that would, under ordinary circumstances, be enough to qualify him as a reliable informant.
While I think that the failure to advise the court of Steele’s bias and ties to the Clinton campaign is a glaring material omission, it is difficult on the record presently available to tell whether that was or should have been a fatal defect. For example, in addition to Steele’s reliability, does the application set forth any corroboration of his information? Former FBI Director James Comey has publicly described the Steele dossier as “salacious” and “unverified.” But does that mean the application is devoid of corroboration of any kind? If Steele’s information is corroborated, how and to what extent? We need to see the actual document to make those critical determinations.
Some Republican members of Congress and some in the media have claimed that the FISC is “unique” in that only the government appears before it to obtain warrants. They have suggested that such proceedings are unfair in that the “other side” is unrepresented. But how else can the FISC do its job? Electronic surveillance by its very nature must be conducted covertly in order for it to work.
I was once called as a prosecution witness to lay the foundation for evidence obtained by a body wire worn by one of my informants. The defense lawyer exuded white-hot anger as he cross examined me. After pacing back and forth in an agitated manner, he wheeled suddenly and, pointing an accusing finger, shouted, “When you wired up Mr. Linguini (not the informant’s real name, but you get the drift), you didn’t see fit to tell my client that he was being bugged, did you?”
“No, counselor,” I replied, “that wouldn’t have been an effective investigating technique.” (Note: to avoid a mistrial, I left out the part about how it also would have gotten Linguini killed.)
I’m not saying that the pols and talking heads are as dumb as that defense lawyer, but come on. Fair is fair. The FISC has to operate in secret to avoid tipping off the targets of the intercepts. Complaining that the FISC is a secret, one-sided court is silly and counterproductive.
Finally, given that there were three renewals of the Page warrant, I can only assume that the intercepts were productive and that they produced evidence of clandestine intelligence activity. Otherwise, why would the court grant the renewals unless evidence of those intercepted activities was included in the renewal applications? But again we don’t have an answer to that question because we don’t have the actual FISA documents.
Congress has asked the DOJ, FBI and the FISC to release the warrants and all related documents. The New York Times has filed a motion with the FISC seeking publication of “all orders authorizing surveillance of Carter Page, a United States citizen, together with the application materials and renewal application materials upon which those orders were issued.”
The motion cites “the overwhelming public interest in assessing the accuracy of the Nunes Memorandum and knowing the actual basis for the Page surveillance orders.” I agree with The New York Times.
The issue of whether the FBI and the DOJ took sides in a presidential election by illegally wiretapping the Trump campaign is too important to be resolved by dueling congressional memos and political talk show conjecture. The public needs to see the unredacted warrants and the related documents. All the facts need to come out. And they need to come out now.
